how to "identify" attorney client "work product"

Typically, when a document is withheld under either the attorney-client privilege or work product doctrine, it will be identified on a privilege log. This is basically a spreadsheet that identifies the document with clarity and the basis of withholding the document, e.g., work product.

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What are the elements of attorney-client privilege and work product doctrine?

Attorney Work Product Doctrine: Federal Rule of Civil Procedure 26(b)(3) protects attorney work product from discovery, including: “[1] documents and tangible things that are [2] prepared in anticipation of litigation or for trial [3] by or for another party or its representative.” PRACTICE TIP: An attorney should be engaging outside vendors

How should counsel explain the privilege and work product to clients?

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

How should lawyers communicate with clients during investigations?

Jan 25, 2018 · First, Rule 26(B)(5)(A)(ii)—and similar State rules—require that a log be prepared when otherwise discoverable information is withheld because of privilege or work product. Second, a party should have a process in place to identify such information, segregate it from what is discoverable, and generate an adequate log.

What is the work product doctrine in law?

Overview. The attorney-client privilege and protection of work product are fundamental to the practice of law and, more specifically, to litigation in the United States. Nevertheless, issues frequently arise as to the scope of the privilege and protection of work product, especially when these are asserted and challenged in the context of ...

What is the difference between attorney-client privilege and work product?

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 is work product in law?

n. the writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials which an attorney has developed while representing a client, particularly in preparation for trial.

Are client notes work product?

Notes made by a client to assist the client in preparing for his deposition were attorney-client or work-product privileged regardless of whether they were communicated to the attorney. In other words, “a client's notes are, ipso facto, attorney–client privileged.”Apr 21, 2020

Is the work product doctrine part of the attorney-client privilege?

6 Federal privileges are governed by the principles of common law, except as otherwise required by the U.S. Constitution, federal statute, or rules prescribed by the Supreme Court. The most common privilege is the attorney-client privilege. The most common privilege doctrine is the work-product doctrine.Mar 11, 2022

What is a work product example?

Work Product means any and all works, including work papers, notes, materials, approaches, designs, specifications, systems, innovations, improvements, inventions, software, programs, source code, documentation, training materials, audio or audiovisual recordings, methodologies, concepts, studies, reports, whether ...

What distinguishes the two kinds of work product?

Work product is divided into two categories: ordinary and opinion. Ordinary work product is the result of gathering basic facts or conducting interviews with witnesses, and is discoverable if there is a showing of substantial need, like a witness that becomes unavailable.

Who holds the work product privilege?

attorneyProc. § 2018.030. Even though the attorney client privilege and the work product doctrine are similar in many ways, the holders of these privileges are distinct. Rather than the client, the attorney is the holder of work product protection.

Is attorney work product hyphenated?

Often stated as the work-product doctrine1 or even the work-product rule. Further, some present the privilege using a hyphen, as in attorney-work product.

Can an email be work product?

Emails prepared in response to possible litigation were not covered by the work product doctrine because they did not involve investigation of the claim or development of legal strategy, and were not part of a coordinated defense strategy with the co-defendant.Apr 13, 2020

What is confidential work product?

Confidential Work Product means all proprietary geophysical, geochemical, drilling, engineering or other similar technical data, along with information, reports, studies, analysis, models or similar data and documents that are produced, acquired or developed by the Parties during the Agreement Term as part of the GoM ...

What is work product immunity?

The work-product immunity refers to protection granted to those materials that is prepared in anticipation of litigation from discovery by an opposing counsel.

What is protected under work product?

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.

What is discoverable under CRCP 26?

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 in Cardenas recognized that “a party is unable without undue hardship to obtain the substantial equivalent of the materials by other means when the requested materials are not available by any other source.” 39 Demonstrating substantial hardship requires the moving party to show that “the facts contained in the requested documents are essential elements of the requesting party’s prima facie case.” 40

Does the work product doctrine apply to wrongful conduct?

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. In A v. District Court, the Colorado Supreme Court considered whether documents prepared by counsel for specific civil litigation were protected from discovery under the work product doctrine in grand jury proceedings. 49 The Court noted that the nature of civil and grand jury proceedings was vastly different, and the alignment of parties in such proceedings was not similar. 50 Based on this, the Court held that “the civil litigation in which the work-product was gathered is not so closely related to the grand jury investigation as to require the application of the work-product exemption.” 51

What is the work product doctrine?

1 In Hickman, the Court aimed to balance the “competing interests” of the privacy of a lawyer’s work and public policy encouraging reasonable and necessary inquiries. 2 Hickman concerned the defense of the owners of a sunken tugboat following the drowning of five of its nine crew members while they were operating the tugboat to assist a car float across the Delaware River. A month after the accident, a public hearing was held before the US Steamboat Inspectors, at which the four survivors were examined. Three weeks later, the survivors were privately interviewed by a lawyer retained in anticipation of litigation against the tugboat owners. While four of the five deceased crew members’ estates settled before litigation, the fifth claimant brought a lawsuit eight months after the interviews were conducted.

What is 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 ...

What is attorney client privilege?

The attorney-client privilege protects communications between a client and an attorney when the communication was made for the purpose of the client obtaining legal advice. [1] . The work product doctrine generally prohibits discovering documents and other tangible items that were prepared in anticipation. [2] .

What is the backpage case?

The Backpage case essentially restores the status quo ante, in which congressional investigation committees and those under investigation will bargain around Congress’s position on the attorney-client privilege without much guidance from a controlling court decision. IV.

Does Congress have the power to investigate?

Congress has nearly limitless powers to investigate anything within the “legitimate legislative sphere.”. [11] Yet, Congress often respects the right of private parties to maintain the confidentiality of legal advice, and rarely compels the production of clearly privileged documents.

What is a privilege log?

This is basically a spreadsheet that identifies the document with clarity and the basis of withholding the document, e.g., work product.

What is the work product doctrine?

This doctrine stands for the proposition that what a party does in anticipation of litigation is protected from disclosure during discovery. This could include a party’s legal or mental impressions, or strategic decisions and organization relative to a pending or ongoing dispute.

What is attorney client privilege?

The definition of attorney-client privilege is generally consistent across jurisdictions: (1) an attorney, (2) a client, (3) a communication, (4) confidentiality anticipated and preserved and (5) legal advice or assistance being the purpose of the communication. i The fifth prong of this test is often the one that is difficult to apply and prove.

What is a classic example?

The “classical example” is the easy case. The more difficult and more frequent example is when a document serves mixed purposes; for example, when (i) it is distributed to lawyers and non-lawyers simultaneously, or (ii) it includes a lawyer’s non-legal input, such as scientific, technical, or grammatical advice.

History of The Work Product Doctrine

• The work product doctrine was first established in 1947 in the US Supreme Court’s landmark case Hickman v. Taylor.1 In Hickman, the Court aimed to balance the “competing interests” of the privacy of a lawyer’s work and public policy encouraging reasonable and necessary inquiries.2 Hickman concerned the defense of the owners of a sunken tugboat following the dro…

See more on cl.cobar.org

The Work Product Doctrine in Colorado

The “Substantial Need” Exception

The Crime-Fraud Exception

Work Product Protection For Expert Witnesses

Comparing The Work Product Doctrine with The Attorney-Client Privilege

Conclusion