Also known as: work product privilege · work-product privilege · work-product privileges · work product doctrine · attorney work product
Written by attorneys · grounded in primary & secondary sources — see below
A qualified protection for documents and tangible things prepared by or for a party or its representative in anticipation of litigation. The protection shields an attorney's mental impressions and legal theories with near-absolute force while allowing discovery of factual work product upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
Warren Woods sues Westbrook Dynamics after a workplace injury. Westbrook's outside counsel immediately interviews three eyewitnesses and prepares detailed memoranda summarizing their statements along with counsel's impressions of credibility. Woods moves to compel production of the memoranda. The court denies the motion because Woods fails to demonstrate the necessity required to overcome work-product protection.
Whitney Washington is injured when a delivery truck owned by Walker Valley Produce strikes her vehicle. Walker Valley's lawyer retains a safety consultant the next day to prepare telematics summaries and reconstruction reports. Washington seeks the reports in discovery. The court sustains the work-product objection because the materials were created by a representative in anticipation of litigation and Washington makes no showing of substantial need or undue hardship.
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A requesting party must demonstrate both substantial need for the materials to prepare its case and an inability to obtain their substantial equivalent without undue hardship. Opinion work product containing mental impressions and legal theories remains protected even when that showing is made.
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Yes. The doctrine extends to documents prepared by a party's representative, including consultants, risk managers, and other agents, when the materials are created in anticipation of litigation.
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Work-product protection is a qualified doctrine focused on trial preparation materials and may be overcome by a showing of need and hardship. Attorney-client privilege is absolute for confidential communications made to obtain legal advice and is not subject to the same need-based exception.
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Materials qualify when they are created because of the prospect of litigation rather than in the ordinary course of business. Collaboration with counsel after an adverse event and the timing of the preparation are strong indicators that the anticipation requirement is satisfied.
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