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Attorney Work Product Doctrine

Attorney Work Product Doctrine
Brien Roche

The attorney work product doctrine is somewhat difficult to define.  In fact it probably should not be called the attorney work product doctrine.  It really should be called the work product doctrine.  It’s a doctrine that applies primarily to attorneys but not only to attorneys.

Attorney Work Product Doctrine – Not Well Defined

The U.S. Supreme Court first dealt with this concept in Hickman v. Taylor, 329 U.S. 495 (1947).  In that case five tugboat crewmen died when their tugboat sank.  Three days later the tugboat owner hired a law firm to defend the company against lawsuits it expected.  A lawyer investigated the accident. He interviewed survivors and others. He prepared memoranda about what he learned.  The Supreme Court made a clear distinction between facts that the lawyer had uncovered and materials that the lawyer had generated during the investigation.  The court essentially said that the facts did not deserve any protection.  The defendant however was not required to produce the materials that the lawyer had prepared. 

The thrust of the doctrine is that it protects documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative.  FRCP 26(b)(3)

As such a lawyer need not be involved.

The Third Restatement of Law Governing Lawyers, § 87 states that the work product consists of tangible material or its intangible equivalent, other than underlying facts, prepared either for litigation or in reasonable anticipation of litigation.

Unlike the attorney-client privilege, this doctrine does not depend upon an attorney-client relationship. It does not depend on confidentiality.It does not even depend on communication.  Likewise the presence of non-adverse third parties does not waive the protection.  Its purpose is to allow litigants to prepare for trial in private and force litigants to do their own work so that the lawyer’s theory of the case does not have to be revealed prior to trial.  Melhelm v. Meijer, Inc., 206 F.R.D. 609, 614-615 (S.D. Ohio 2002)

Attorney Work Product Doctrine – Anticipation of Litigation

In terms of looking at what qualifies as anticipation of litigation, the court typically looks at two things.  It looks at an objective test and then a subjective test.  The objective test is based on whether a reasonable person would have felt that there is a substantial chance of litigation.  The subjective test is whether the party invoking the doctrine believes in good faith that there is a substantial chance that litigation will ensue.  In re: Horizon Offshore Contractors, Inc. 2007 Tex. App. Lexis 295 at 3 (Tex. App.)

There are several factors that a court might look at in determining whether or not the anticipation of litigation criteria has been met.  They may be such things as whether a lawyer has been hired?  Has a demand letter been sent?  The overall egregiousness of the underlying event.  Is the action by the litigant something that is part of its ordinary course of business?  Has the duty to preserve documents been triggered i.e., has a spoliation letter been sent.

Another important marker of the anticipation of litigation criteria is, was the conduct motivated by that litigation.  U.S. Fire Insurance Co. v. Bunge, N. Am., Inc., 247 F.R.D. 656, 658 (D.Kan. 2007)  The mere fact that the document is prepared when litigation is foreseeable typically is not enough.  Rather the motivation for creating the document must be the litigation.  In re: Grand Jury Proceedings 2001, Lexis 15646 at 49 (S.D.N.Y.)

Another factor to look at in terms of anticipation of litigation is whether or not the documents were created in the ordinary course of business.  Documents that are prepared as a matter of course and not tied to specific litigation typically are not protected.  Burton v. R. J. Reynolds Tobacco Co., 177 F.R.D. 491, 498 (D.Kan. 1997)

Fact v. Opinion

Courts further refine the work product content when looking at whether it is fact work product or opinion work product.  Fact work product is the least protected type of material.  The theory being that facts are facts and they do not reflect any conclusions of counsel.  For instance historical documents that are not covered by attorney-client privilege typically would not be protected.

On the other hand, impressions, conclusions, opinions or legal theories are accorded a much higher degree of protection.  Some courts call this core work product.  In re: Seigel, 198 S.W.3d 21, 28 (Tex. App. 2006)

An attorney’s interview of a third party witness might be thought of as simply fact work product.  The questions however may contain the impressions or the thought processes of counsel and therefore in that regard may be protected. 

The basic elements of the work product doctrine are that it:

  1.  Protects documents and tangible things.
  2.  Prepared in anticipation of litigation or for trial.
  3.  Based on either an objective or subjective test.
  4.  The conduct was motivated by the litigation.
  5.  Not prepared in the ordinary course of business.  
  6.  The documents are opinion work that contain some impressions, conclusions or legal theories.  

Call, or contact us for a free consult. Also for more info on attorney work product doctrine see the Wikipedia pages. Also see the post on this site dealing with work product issues.


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