Also known as: work-product · work products · work product doctrine · attorney work product
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection from discovery for tangible material or its intangible equivalent prepared by or for a lawyer in anticipation of litigation or for trial. The doctrine shields an attorney's mental impressions, legal theories, and preparations from opposing parties unless the requesting party demonstrates substantial need and inability to obtain the equivalent without undue hardship.
Westmont Healthcare's in-house counsel interviewed several nurses after a patient filed a malpractice suit. Counsel prepared detailed memos summarizing the interviews and assessing potential trial strategies. When the plaintiff sought the memos in discovery, the court denied the request because the materials were prepared in anticipation of litigation and the plaintiff failed to show substantial need or undue hardship in obtaining equivalent facts elsewhere.
After a fatal industrial accident, Wolverine Steel retained outside counsel who interviewed surviving coworkers and prepared written statements and memoranda. When the plaintiffs sought those materials, the court refused production absent a showing of necessity because the notes reflected the attorney's preparations made in anticipation of litigation.
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Watershed Pharmaceuticals directed mid-level scientists to provide information to corporate counsel about product testing protocols after a lawsuit was threatened. Counsel compiled the responses into protected documents. The opposing party could not obtain the materials without demonstrating substantial need and undue hardship because the work product doctrine shielded the attorney's preparations made in anticipation of litigation.
Whitney White sued her former law firm for overbilling and inadequate representation. The firm sought to use its own work product and client communications to defend the claims. The court permitted access under the self-defense exception because the client had placed the representation at issue.
Wayne Walker retained counsel after a contract dispute arose. Counsel created internal strategy memos and witness outlines in anticipation of suit. When the opposing party demanded production, the court upheld protection because the materials qualified as work product prepared for trial.
Winston Ward's company faced a regulatory investigation. Counsel prepared an internal report analyzing potential claims and defenses. The government could not compel production without showing substantial need because the report constituted protected work product created in anticipation of litigation.
The requesting party must demonstrate substantial need for the materials and inability to obtain their substantial equivalent without undue hardship. Mere relevance is insufficient.
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No. The protection extends to materials prepared by or for a party or its representative, including agents and insurers, so long as they were created in anticipation of litigation.
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A law firm may use its own work product when defending against client claims such as malpractice or fee disputes because the client has placed the representation at issue.
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…is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment. Nor, indeed, does the…