how to recognize a document as being attorney work product

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 this access by requiring a showing of “substantial need” of the materials requested and that the substantial equivalent of the desired materials is unable to be obtained without “undue hardship.” 17 To obtain information from materials otherwise protected as work product, the information sought must “ (1) be relevant to the subject matter involved in the pending action [and] (2) not be privileged;” further, “an attorney’s work product is not discoverable except upon a showing of substantial need and inability to obtain the information elsewhere.” 18 Nevertheless, the rule precludes the discovery of “mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.” 19

Full Answer

What is an attorney work product?

Attorney Work Product. Definition. Written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation.

When is attorney work product not discoverable?

In addition, attorney work product beyond that described in subdivision (a), “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030 (b).)

Can the work product doctrine be used in criminal litigation?

In United States v. Nobles, 422 U.S. 225 (1975), the Supreme Court clarified that the work product doctrine can be used in both civil litigation and in criminal litigation. For more on the work product doctrine, see this Florida State University Law Review article, this St. John's Law Review article, and this National Law Review article .

How can I get help with an attorney-client work product disclaimer?

If you need help with an attorney-client work product disclaimer, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site.

Are attorney notes work product?

One critical lesson is that a court generally will afford work product protection to attorney notes, as long as those notes contain “mental impressions or conclusions,” also known as “opinion work product.” Notes that contain purely factual information will, in all likelihood, be subject to discovery.

Does work product have to be prepared by an attorney?

Ill. 1972), documents prepared in ordinary course of business and not compiled for an attorney or requested by an attorney could not be protected by the work product privilege.

What is considered work product?

The work-product doctrine now encompasses “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,”3 and a party's representative can be its attorney, but it also can be its insurer, employee or other agent.

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 ...

Are emails attorney work product?

The law states that communication between a lawyer and his or her client is only protected if the primary purpose of that communication is to provide legal advice. That means that if a lawyer sent his client business advice in an email, then that email does not fall under attorney-client protection.

What is work product in law?

Opinion work product is the record of an attorney's mental impressions, ideas or strategies, and is almost never subject to discovery.

What is a work product in a contract?

“Work Product” shall mean all materials, data, works of authorship, concepts, presentations and reports in connection with Consultant's performance of the Services, including, without limitation, all intellectual property rights therein.

What is attorney work product NY?

Taylor, 329 U.S. 495 (1947). The work product of an attorney includes material produced and obtained by an attorney in his or her professional capacity and with the use of his or her professional skills involving legal reasoning, legal research, analysis, conclusions, legal theory, and strategy.

What is attorney work product in Texas?

The work- product doctrine is found at Texas Rule of Civil Procedure 192.5 in Texas cases and Federal Rule of Civil Procedure 26(b)(3) in federal cases. Work product includes material prepared, mental impressions developed, or communi- cations made “in anticipation of litigation” or for trial.

Does the work product doctrine relate to attorney-client privilege?

Attorney work product privilege permits attorneys to withhold from production documents and other tangible things prepared in anticipation of litigation by or for another party or its representative.

Does work product have to be confidential?

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.

What is confidential work product?

Related to Confidential Work Product. Confidential Materials means all tangible materials containing Confidential Information, including without limitation written or printed documents and computer disks or tapes, whether machine or user readable.

What is the work product doctrine?

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.

Is the work product doctrine a rebuttable presumption?

Specifically, the Court clarified that there is a presumption that an adverse party may not have access to materials prepared by a party's lawyers in anticipation of litigation . The Court maintained that this presumption may be overcome when a party has relevant ...

What is an attorney's work product?

An attorney's work product is very similar to attorney-client privilege, but it broadens the scope of what is protected. If the opposing counsel in a case was able to see everything their adversary prepared for the trial before the trial took place, it would throw off the balance of justice. Over 20 years after the Hickman v.

What is work product?

The legal protection of attorney work product did not fully form until 1947 in the important case of Hickman v. Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like: 1 Video and voice recordings 2 Written documents 3 Notes 4 Photographs

What Is Work Product Protection?

Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like:

What is discovery in attorney-client privilege?

Discovery is another aspect of attorney-client privilege as communication between client and counsel is not discoverable by opposing counsel. This means that everything a client says to their attorney is not required to be shared with the opposing side of the case.

Why are conversations protected in a lawyer?

During this preparation, an attorney may ask for sensitive information from their client, and such conversations are protected to ensure that the client is given every opportunity to be entirely forthcoming.

How to ensure that all information is protected?

The best way for a company to ensure that all of their information is protected is to form confidentiality agreements with anyone they work with, whether attorneys, government agencies, or other companies. Confidentiality agreements: Limit what the signing party is able to disclose about the company.

How to protect your business from lawsuits?

The best way for a company to ensure that all of their information is protected is to form confidentiality agreements with anyone they work with, whether attorneys, government agencies, or other companies.

What is attorney work product?

General work product usually consists of documents and tangible things that are prepared in anticipation of litigation or for trial by the party or the party's representatives. Opinion work product includes only those ...

How to determine if a material is a work product?

Determining whether certain materials are work product usually entails more than just a review of the content of the materials (and whether they are general or opinion work product). It also involves a review of who created them.

What is the exception to the Georgia law?

Georgia cases have recognized certain exceptions to this rule: if the lawyer can demonstrate good cause to protect the documents from disclosure, such as when disclosure would violate the lawyer's duty to a third party, where the document assesses that particular client, where the relationship between client and attorney becomes adversarial, or where the lawyer's tentative preliminary impressions are documented for the purpose of facilitating the provision of legal services required by that representation.

Why do we retain a testifying expert?

After all, the purpose of retaining a testifying expert is to use his or her opinions, and therefore the facts used to form those opinions, at trial. As to nontestifying experts, their identity and the facts and opinions they hold are generally protected and need not be disclosed.

Why is it important to know the material is subject to a qualified privilege?

General work product materials are typically subject only to a qualified privilege, meaning that a court may order them to be disclosed if the requesting party satisfies certain requirements, including that the requesting party has a "substantial need" of the materials and is unable to obtain the substantial equivalent of the materials by other means. O.C.G.A. § 9-11-26 (b) (3).

What is the purpose of retaining a testifying expert?

If the former, the work-product doctrine may not protect the facts known or opinions held by those experts. After all, the purpose of retaining a testifying expert is to use his or her opinions, and therefore the facts used to form those opinions, at trial.

Who is the author of Georgia legal malpractice law?

J. Randolph Evans and Shari L. Klevens are the authors of "Georgia Legal Malpractice Law," published by Daily Report Books.

The contours of the attorney-client privilege are generally well understood, but the work-product analysis can be more nuanced

When resolving discovery motions, I sometimes must examine a party’s privilege log to determine whether documents have been properly withheld from discovery based on the attorney-client privilege or attorney work-product doctrine.

Not All Work Product Is Equal

Courts distinguish between “opinion” or “core” work product and “non-core” work product. Materials that disclose an attorney’s mental impressions and opinions are considered “core” work product and are afforded heightened protection.

Challenging Work-Product Designations

Rule 26 (b) (3) (A) sets a high, but not insurmountable, bar for a party seeking disclosure of work-product materials.

Tips for Defensible Work-Product Designations

Because the work-product protection is not absolute, counsel must take care when designating work product on a privilege log. To withstand a challenge under Rule 26 (b) (3), counsel should determine whether the information was generated in anticipation of litigation or as part of routine business procedures.

What is the standard for discovery of work product?

The standard for discovery of work product for the requesting party is high. The Court’s holding in Cardenas demonstrates that documents protected by work product are discoverable only when they are necessary to prove the plaintiff’s case and the plaintiff is unable to obtain the requested information by any other means. 45 And even with this high burden met, the Court directed the trial court to shield “mental impressions, conclusions, opinions, or legal theories” from discovery to uphold this aspect of work product protection. 46

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.

Why are statements recorded by a claims adjuster a month before litigation became imminent not protected?

held that statements recorded by a claims adjuster a month before litigation became imminent were not protected because the withholding party must meet its burden “of showing a substantial probability of imminent litigation.” 25

What amendments clarified the scope of discovery regarding expert witness-related communications and draft reports?

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.

When was the Work Product doctrine codified?

It was codified into the Federal Rules of Civil Procedure 23 years later with the 1970 amendments. 10

When Rule 26 and the other discovery rules were adopted, did the members of the bar in general not believe or contemplate?

when Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. 8

Which case examined the ordinary nature of insurance claims and relied on standards from Hawkins?

25. Compton v. Safeway, Inc., 169 P.3d 135, 138 (Colo. 2007). See also Lazar v. Riggs, 79 P.3d 105 (Colo. 2003), which examined the ordinary nature of insurance claims and relied on standards from Hawkins to determine whether documents were prepared in anticipation of litigation.

What is the limitation on expert discovery imposed by attorney work product doctrine?

The limitation on expert discovery imposed by attorney work-product doctrine may be crucial to developing one’s case. It may be necessary to consult with an expert to determine how to craft pleadings, how to cross-examine opposing experts, and other strategic considerations. National Steel Products.

What is an expert witness?

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him her] as an expert on the subject to which his [/her] testimony relates.” &] (Evid. Code, § 720.) Once qualified, an expert may offer an opinion “ [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact [.]” (Evid. Code, § 801 (a).) Such an opinion can be based on matters “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code § 801 (b).) The type of material an expert may rely upon is quite broad and encompasses inadmissible evidence, such as hearsay. Simply put, experts wield incredible power in litigation and the attorney’s communications with them should be deliberate and strategic.

Can an expert be cross-examined?

First, it was “reasonable to infer that the expert considered his prior engineering report in his preparations for trial []” and under Evidence Code section 721 “an expert witness may be cross-examined regarding any scientific, technical, or professional publication if : ‘ (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his opinion [.]’” ( Id. at 490-491.) Second, there was “no adequate substitute for the report . . . because the potential impeachment value of the report lies in the fact that it was prepared by the expert identified as a witness [.]” ( Id. at 491-492.)

Can an expert provide an advisory report?

What’s clear from this three-part test is that a design ated expert may still provide an advisory report that is not discoverable and entirely separate from a discoverable report generated for trial. As set forth below, however, counsel should proceed with such advisory reports with caution. The National Steel court’s decision to allow discovery of the expert’s advisory report is based in part on the opinion set forth in Petterson v. Superior Court (1974) 39 Cal.App.3d 267.

What Is Attorney-Client Privilege?

What Is Work Product Protection?

• The legal protection of attorney work product did not fully form until 1947 in the important case of Hickman v. Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like: 1. Video and voice recordings 2. Written documents 3. Notes 4. Photographs W...

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