Also known as: work product exception · work-product exceptions · work product exceptions · work product doctrine · work-product doctrine · work product privilege
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection against discovery for documents and tangible things prepared by or for a party or its representative in anticipation of litigation. The protection is overcome only when the requesting party demonstrates substantial need for the materials and an inability to obtain their substantial equivalent without undue hardship. Opinion work product containing mental impressions and legal theories receives heightened protection.
Warren Wu and Walker Valley Produce sue a chemical supplier after a spill damages crops. The supplier's counsel immediately directs an internal team to prepare an incident report with field notes and witness interviews. Wu moves to compel the report. The court denies the motion because the report constitutes work product prepared in anticipation of litigation and Wu has not shown substantial need or undue hardship in obtaining equivalent information.
Wesley Wong and other investors sue Winslow Aviation alleging misleading disclosures. After regulators begin an inquiry, the company's compliance department prepares risk memoranda and slide decks at the direction of outside counsel. Wong moves to compel the materials. The court sustains the objection because the documents were prepared in anticipation of litigation and Wong has not demonstrated substantial need or undue hardship.
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The requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain the substantial equivalent without undue hardship. Opinion work product containing mental impressions receives stronger protection and is rarely ordered produced.
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Work-product protection covers materials prepared in anticipation of litigation by a party or its representatives and is qualified. Attorney-client privilege protects confidential communications made for the purpose of obtaining legal advice and is absolute when it applies.
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Yes. The doctrine extends to documents prepared by or for a party or its representatives, including consultants, risk managers, and compliance personnel acting at counsel's direction in anticipation of litigation.
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Materials qualify when created because of expected litigation rather than in the ordinary course of business. Timing relative to a filed complaint is relevant but not dispositive. Involvement of counsel and the purpose of the work are key indicators.
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…important questions concerning the scope of the attorney-client privilege in the corporate context and the applicability of the work-product doctrine in proceedings to enforce tax summonses. 445 U. S. 925. With respect to the privilege question the parties and various amici have described our task as one of choosing between two "tests"…