Work-product doctrine

In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel.[1] It is also known as the work-product rule, the work-product immunity, and the work-product exception. It is sometimes mistakenly called the work-product privilege. This doctrine does not apply in other countries, where such communications are not protected, but where the legal discovery process itself is much more limited.[2]

Doctrine

Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable.[3][4]

Comparison with attorney–client privilege

The work-product doctrine is more inclusive than attorney–client privilege. Unlike the attorney–client privilege, which includes only communications between an attorney and the client, work product includes materials prepared by persons other than the attorney him/herself: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case.

Despite its inclusiveness, the work-product doctrine is less powerful than the attorney-client privilege, and therefore may be overcome by a showing of necessity. An example of a possible exception would be a witness being unavailable due to death or living in a remote/hostile nation.

Even if an exception to the work-product doctrine is made, the court would still protect privileged actions by an attorney, by redacting the privileged part of the document. "Memoranda, briefs, communications ... other writings prepared by counsel for his/her own use in prosecuting the client's case ... mental impressions, conclusions, opinions, or legal theories" are never discoverable by an opposing party.

History

The work-product doctrine originated in the 1947 case of Hickman v. Taylor, in which the Supreme Court affirmed a United States Court of Appeals for the Third Circuit decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney.[4] The Supreme Court, acting at the recommendation of the Advisory Committee of the Judicial Conference, later enshrined this doctrine formally in the Federal Rules of Civil Procedure as Rule 26(b)(3).[5]

References

1. Bryan A. Garner, ed. (2000). "Work-product rule". Black's Law Dictionary (Abridged 7th ed.). St. Paul, Minn.: West Group. p. 1298.
2. Craig D. Bell, Thomas E. Spahn, Christopher S. Rizek, "A Guide to the Attorney-Client Privilege and Work Product Doctrine for Tax Practitioners" (2007), p. 11.
3. "Work product". Black's Law Dictionary. p. 1298.
4. Hickman v. Taylor.
5. "Certain of the Amendments of Federal Rules of Civil Procedure Adopted by the Supreme Court of the United States on March 30, 1970, Effective July 1, 1970, With Advisory Committee's Notes Thereon." Reprinted in Kevin M. Clermont, ed. (2006). Federal Rules of Civil Procedure, and Selected Other Procedural Provisions. New York: Foundation Press.

External links

• Expanding Scope of Attorney-Work-Product Doctrine: United States v. Aldman
• Protection From Discovery—A Little About Work-Product, Attorney-Client And Common-Interest Privileges