Also known as: work-product privilege · work product doctrine · attorney work product · work-product doctrine
Written by attorneys — see sources below.
A qualified protection shielding materials prepared by or for an attorney in anticipation of litigation from discovery. The protection preserves the attorney's mental impressions, litigation strategy, and preparations. It yields only upon a showing of substantial need and inability to obtain equivalent information without undue hardship.
Westbrook Dynamics faces a contamination suit from neighboring landowners. Its counsel conducts interviews with seasonal workers after the complaint is filed and records summaries in field notes. The landowners move to compel the notes. The court denies the motion because the notes were prepared in anticipation of litigation.
Windham Technologies' in-house counsel directs mid-level engineers to supply information about internal processes after a copyright complaint arrives. Counsel prepares memos summarizing those interviews. The opposing party seeks the memos in discovery. The court withholds the memos absent a showing of substantial need.
Wade Watson is charged with a federal offense and seeks internal prosecution memoranda evaluating charging criteria. The government prepared the memoranda after the investigation began. Watson moves to compel the documents. The court denies production because the materials constitute protected work product.
In April 1992, respondents were indicted in the Central District of California on charges of conspiring to possess with intent to distribute more than 50 grams of cocaine base (crack), conspiring to distribute the same, and related federal firearms offenses. Federal and local agents, using confidential informants, made a series of purchases of crack from respondents and observed firearms during several transactions. Respondents were arrested and evidence, including additional crack and a loaded gun, was recovered. In response to the indictment respondents moved for discovery or dismissal, alleging selective prosecution on racial grounds. They submitted an affidavit from a paralegal specialist at the Office of the Federal Public Defender stating that, in every one of 24 § 841 or § 846 cases closed by that office during 1991, the defendant was black, and a study listing those 24 cases with limited information about race and case status. The Government opposed discovery, noting that respondents offered no evidence that the Government had prosecuted nonblack defendants differently or had failed to prosecute them. The District Court ordered expansive discovery: a list of all cases from the prior three years in which the Government charged both cocaine and firearms offenses, the race of defendants in those cases, the levels of law enforcement involved, and the Government's criteria for deciding to prosecute federal cocaine offenses. The Government moved for reconsideration and submitted affidavits and other evidence explaining the basis for prosecuting respondents and disputing the inference of selective prosecution. Agents and an Assistant United States Attorney averred that race played no role in the investigation and that the case met ordinary prosecutorial criteria given the quantity of crack, multiple sales, firearms violations, strong evidence, and defendants' criminal histories. The Government also submitted a published DEA study discussing the dominance of particular groups in large-scale crack trafficking. The District Court denied reconsideration and, when the Government refused to comply with the discovery order, dismissed the indictment. A divided Ninth Circuit panel reversed; the en banc Ninth Circuit affirmed the dismissal, holding that a defendant need not show the Government failed to prosecute similarly situated others to obtain discovery. The Supreme Court granted certiorari to decide the appropriate standard for discovery on a selective-prosecution claim.
View caseWilliam Williams is prosecuted for obstruction. His counsel retains an investigator who interviews witnesses and prepares a report containing strategic assessments. The government subpoenas the report after trial begins. The court quashes the subpoena because the report reflects work product prepared in anticipation of litigation.
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank. The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery. Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses. In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report. During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement. The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles. Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement. The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews. The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue. After the prosecution rested, the defense called the investigator as a witness. The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony. When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses. The Court of Appeals for the Ninth Circuit reversed the conviction. The Supreme Court granted certiorari.
View caseYes. Materials prepared by counsel in anticipation of litigation, such as notes reflecting interviews with potential witnesses, receive qualified protection even when the interviewees are not clients. Production requires a showing of substantial need and undue hardship.
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Work product protection is qualified and covers materials prepared in anticipation of litigation regardless of whether they involve client communications. Attorney-client privilege is absolute but limited to confidential communications between attorney and client for legal advice.
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The requesting party must demonstrate substantial need for the materials and inability to obtain substantially equivalent information without undue hardship. Mental impressions of counsel remain protected even when that showing is made.
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No, provided the disclosure was inadvertent, reasonable steps were taken to prevent disclosure, and prompt steps were taken to rectify the error. The producing party may still assert protection after notification.
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