What is the work product doctrine in law?
he attorney work product doctrine is a relatively recent development in American jurisprudence. While the attorney-client privilege traces its roots to English common law, the work product doctrine was developed in the mid-20th century when courts recognized the need to protect an attorney’s mental thoughts and impressions
Can an interrogatory invade attorney work product privilege?
06/30/2010 1 Attorney-Client Privilege and Work Product Doctrine Attorney-Client Privilege Elements. • Legal advice of any kind is sought • From a professional legal advisor in that capacity • Communications made for that purpose • In confidence • By the client • At the client’s instance permanently protected • Unless privilege is waived. Attorney-Client Privilege Purpose.
What are the elements of the product doctrine of attorney client privilege?
Overview. The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation. However, under Rule 26 (b) (3) of the Federal Rules of Civil Procedure , an adverse party may discover or compel disclosure of work …
What is attorney work product privilege?
In some ways, the work product doctrine is broader than the attorney-client privilege because its protections are not limited solely to communications or confidential matters. However, the work product doctrine is also narrower than the attorney-client privilege because its protections extend only to documents and other tangible things that are prepared in anticipation of litigation.
What does the work product doctrine protect?
Protects documents and tangible things that are prepared in anticipation of litigation by (or for) another party or its representative from disclosure to third parties.
Who does the work product privilege belong to?
Whoever creates work product has the right to assert the privilege – typically attorneys and their clients (or “representatives” of either). So long as it was created in anticipation of litigation and meets the other prongs of the test set out above in No. 1.Jun 5, 2019
What US Supreme court case established the work product doctrine?
Hickman v. TaylorThe work product doctrine was first established in 1947 in the US Supreme Court's landmark case Hickman v. Taylor.
What is Kovel doctrine?
In United States v. Kovel, the Second Circuit found that the attorney–client privilege extended to communications between an attorney and a third-party consultant who acted as an interpreter.Jan 29, 2019
What is the difference between work product and attorney-client privilege?
According to the Cornell Law School Legal Information Institute, the “attorney-client privilege refers to a legal privilege that works to keep confidential communications between an attorney and his or her client secret.” On the other hand, the Cornell Law School Legal Information Institute proclaims “the work product ...Mar 17, 2020
What kind of work falls under the work product rule?
A legal doctrine that provides that certain materials prepared by an attorney who is acting on behalf of his or her client during preparation for litigation are privileged from discovery by the attorney for the opposition party.
Does the work product doctrine apply to communications?
Work product often overlaps with privileged communications, confidential information, and information subject to client privacy rights. It is thus proper to assert all of them when applicable, even though the applicable law may be somewhat different.
Where does the work product doctrine come from?
The work-product privilege or doctrine1 originated in the seminal case of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947, in which the U.S. Supreme Court held that statements of witnesses obtained by an attorney prior to trial were privileged and thus protected from discovery.Jul 7, 2021
What are the FRCP rules that explain e discovery?
No later than 100 days after the filing of a lawsuit, clients must be prepared to discuss and make cost-driven decisions on important electronic discovery issues such as: (1) the format in which electronic documents will be produced; (2) the manner in which electronic documents will be preserved by the parties; and (3) ...
What is the Kovel doctrine and how can it operate to shield an accountant's work product?
4 Thus, while disclosure of client confidences to a third party would ordinarily constitute a waiver of the attorney-client privilege, the Kovel doctrine allows an attorney to engage an accountant to assist in his representation of a client while protecting the confidentiality of communications among the accountant, ...Sep 13, 2012
What is a Kovel letter?
A Kovel letter is used in very-limited situations, in which an attorney wants to try to extend the attorney-client privilege on matters involving highly-complex accounting/tax situations only. When Kovel is not used correctly, it jeopardizes the attorney-client privilege.
The Work Product Doctrine in Colorado
- The Colorado Supreme Court codified the work product doctrine at CRCP 26(b)(3), effective April 1, 1970.15 This rule allows discovery for information “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative.”16 The rule qualifies t…
The “Substantial Need” Exception
- Under CRCP 26, information prepared in anticipation of litigation is discoverable “only upon showing that the party seeking discovery has substantial need of the materials.”37 Cardenas v. Jerath provides guidance on what “substantial need” a party seeking materials must demonstrate to obtain work product that would normally be protected.38 The Colorado Supreme Court inCard…
The Crime-Fraud Exception
- The work product doctrine does not apply to documents that may establish wrongful conduct, which are carved out by the crime-fraud exception. Interestingly, the earliest Colorado decision to address the crime-fraud exception to the work product doctrine came before Hawkins explicitly established the doctrine itself. InA v. District Court, the Colorado Supreme Court considered whe…
Work Product Protection For Expert Witnesses
- The 2015 amendments to the Colorado Rules of Civil Procedure clarified the scope of discovery regarding expert witness-related communications and draft reports.59 Previously, the rules did not provide express protections for draft reports of and communications with experts. CRCP 26(b)(4)(D) now expressly protects drafts of any report and “communications between the party’…
Comparing The Work Product Doctrine with The Attorney-Client Privilege
- The attorney-client privilege and the work product doctrine are sometimes confused. The attorney-client privilege is similar to, yet distinct from, the work product doctrine, and the differences are important. The attorney-client privilege aims to protect confidential communications between the attorney and the client for the purpose of maximizing full disclosu…
Conclusion
- The application of the work product doctrine and any potential disclosure of work product remain factually intensive questions that vary from one situation to the next. In applying the doctrine, courts must assess, according to relevant case law, whether litigation is truly imminent, whether a substantial need for the work product exists, the presence of an undue hardship in otherwise obt…
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