what constitutes work product for an attorney

Work product refers to the writings, notes, memoranda, reports on conversations with the client or witness, research and confidential materials that reflect an attorney's impressions, conclusions, opinions, or legal research or theories.Work product materials are confidential and are not required to be submitted in answer to discovery requests or subpoenae.

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What is the Attorney work product doctrine?

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 does work product mean in law?

Jan 22, 2014 · The court ordered an in camera review to analyze any remaining opinion work product claims – bluntly labeling as "not credible" a Gibson Dunn lawyer's representation that "every word in the interview memos constitutes 'core opinion work …

What is the definition of attorney work product?

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,

What is attorney work product privilege?

Work Product Law and Legal Definition Work product refers to the writings, notes, memoranda, reports on conversations with the client or witness, research and confidential materials that reflect an attorney's impressions, conclusions, opinions, or legal research or theories.Work product materials are confidential and are not required to be submitted in answer to discovery …

What is included in 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 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 defined as work product?

Legal Definition of work product : the set of materials (as notes), mental impressions, conclusions, opinions, or legal theories developed by or for an attorney in anticipation of litigation or for trial.

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

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

Who holds the work product privilege?

Proc. § 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.

Are witnesses work product?

The California Supreme Court held that witness statements collected by or at the direction of an attorney constitute at least qualified work product, as a matter of law.

Is attorney work product hyphenated?

A privilege that shields from discovery, the private notes or other documents of a lawyer as she or he, or their agents, prepare in the context of a matter considered for litigation. Further, some present the privilege using a hyphen, as in attorney-work product. ...

What is fact work product?

Fact Work Product is a tangible work product which includes facts but not an attorney's mental impressions. Fact work product is subject to a qualified privilege. It is not allowed to discovery unless the party seeking discovery shows a substantial need for such materials. This is also known as ordinary work product.

Are attorney emails work product?

District Court Confirms Work-Product Doctrine Privilege Covers Only Certain Documents Exchanged With Third Party Consultants. ... However, the District Court did agree that some of the emails were protected by the attorney work product doctrine.Apr 25, 2017

Can clients create work products?

The client and any of its representatives (whether or not lawyers) can create work product. ... File memos and other uncommunicated documents may qualify for work product protection if they were prepared in anticipation of litigation, and their creation was motivated by the litigation.Sep 10, 2013

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

What is work product doctrine?

While the attorney-client privilege seeks to protect confidential communications between an attorney and a client, work product doctrine generally establishes a “zone of privacy” in which a lawyer and a client can prepare and develop theories and strategies in anticipation of, and in preparation for litigation, free from unnecessary intrusion by the adversary.

What is professional conduct?

See Rule of Professional Conduct 4.4(b) (“A lawyer who receives a document relating to the representation of the lawyer's client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender. ”).

What is CPLR 4550?

A January 2015 Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York (January 2015 Report) proposed adoption of a new CPLR 4550, addressing attorney-client privilege and work product protection when otherwise protected communication or information is disclosed. (January 2015 Report, at 20-21). Proposed CPLR 4550 addresses both subject matter waiver and inadvertent production, and is intended to align New York law with FRE 502(a) and (b).

Does New York have a waiver rule?

To date New York State has not had a codified rule with respect to waiver scope. The small number of decisions, and the absence of definitive appellate precedent have left the waiver scope rule unclarified. Some decisions have held that any voluntary disclosure of the content of attorney-client privileged matter constitutes a waiver of the privilege as to all other matter on the same subject. Matter of Stenovich v. Wachtell, Lipton, Rosen & Katz, 195 Misc.2d 99, 109 (Sup. Ct. N.Y. Co. 2003); AMBAC Indemn. v. Bankers Trust, 151 Misc.2d 334, 340-341 (Sup. Ct. N.Y. Co. 1991); Matter of Baker, 139 Misc.2d 573, 576 (Surr. Ct. Nassau Co. 1988). Conversely, the decision in Charter One Bank v. Midtown Rochester, 191 Misc.2d 154, 163-164 (Sup. Ct. Monroe Co. 2002), broadly rejected a subject matter waiver rule, finding that it "effectively undermine[s] the purpose of the attorney-client privilege for allowing free flowing information between counsel and client," and suggesting that there can never be a subject matter waiver brought about by a partial disclosure of a privileged matter.

What is work product doctrine?

The work product doctrine protects material prepared by an attorney or at the direction of an attorney in anticipation of litigation. RBS Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. 2013). To identify work product, courts are directed to determine “whether in light of the factual context the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” Logan v. Commercial Union Ins. Co., 96 F.3d 971, 976-77 (7th Cir. 1996). The determination of whether materials are prepared in anticipation of litigation or the prospect of litigation eludes precision. Allendale Mut. Ins. Co. v. Bull Data Syst., Inc., 145 F.R.D. 84, 86 (N.D. Ill. 1992).

What are the obligations of an in-house lawyer?

In-house lawyers owe the same professional obligations with respect to the preservation of privileged communications as outside counsel. However, in-house counsel may confront challenges relating to the application of the attorney-client privilege and work product doctrine that differ from those faced by outside counsel. To understand the difference in the challenges faced by in-house counsel and outside counsel, one need not look much farther than how the attorney-client relationship giving rise to the privilege is formed. For example, as the resident lawyer, in-house counsel are often confronted with questions prefaced with the phrase “as my lawyer.” But does that title really fit? When is in-house counsel representing the individual as opposed to the entity? How should one draw the line between the provision of legal advice which is potentially privileged and business advice which, while possibly confidential, is not privileged? Understanding the parameters of the attorney-client privilege and the work product doctrine is essential to being able to maintain the trust that forms the basis of the attorney-client relationship and to protect the client. This paper is intended as an overview of some of the issues in-house counsel face relating to the preservation of confidentiality.

What is attorney-client privilege?

The attorney-client privilege protects communications made in confidence between a client and a client’s employees to an attorney, acting as an attorney, for the purpose of obtaining or providing legal advice. See Upjohn Co. v. United States, 449 U.S. 383, 394-99 (1981). An important part of the role of in-house counsel is to help educate the people with whom they interact about the limited scope of what actually constitutes an “attorney-client communication” that is “privileged.” In our experience, many non-lawyers assume that all of their communications with in-house counsel are “privileged.” Thus, the preservation of the privilege may hinge on in-house counsel’s success in educating the people who seek their counsel concerning the narrow scope of the privilege.

What is the common interest doctrine?

The “common interest” doctrine, which, depending on the circumstances in which it is asserted may be referred to as the joint defense privilege, offers a narrow exception to the rule that sharing a communication with a person other than a person or entity’s own counsel waives the attorney-client privilege or attorney work product privilege. To fall within the ambit of this, the communication has to otherwise qualify for protection under the attorney-client privilege or the work product doctrine. See Allendale Mut. Ins. Co. v. Bull Data Sys., Inc., 152 F.R.D. 132, 139-140 (N.D. Ill. 1993). The common interest doctrine/joint defense privilege applies to circumstances in which two or more people or entities consult an attorney for legal advice or in pursuit of a common goal concerning a matter of mutual concern. “The purpose of the common interest doctrine is to protect the confidentiality of communications … where a joint … effort or strategy has been decided upon or undertaken by the parties and their respective counsel.” United States v. Evans, 113 F.3d 1457, 1467 (7th Cir. 1997).

What is the purpose of Upjohn v. United States?

In Upjohn v. United States, the Supreme Court provided important guidance to all attorneys who find themselves interviewing corporate employees. The purpose of the “Upjohn Warnings”, as they have come to be known, is to make sure that the individual employee being interviewed understands that the attorney-client privilege, as commonly understood, does not apply to their interview with an attorney representing the corporation. Making sure that the employee being interviewed is aware of this fact is a necessity that establishes the ethical character of the attorney’s actions while also preserving the corporation’s legal ability to control and use the statements by the employee in the manner best suited to its legitimate interests.

What is the challenge inherent in representing multiple clients in a matter?

challenge inherent in representing multiple clients in a matter is keeping a sharp lookout for conflicts between the clients and addressing those conflicts as they arise. Counsel sometimes attempt to address those conflicts by obtaining prospective conflict waivers from their clients. In some instances, Courts have found prospective conflicts waivers to be enforceable. Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142

Does joint defense only apply to attorney-client privilege?

The joint defense privilege only applies as long as the attorney-client privilege is applicable. Janousek v. Slotky, 980 N.E.2d 641 (1st Dist. 2012), illustrates the analysis that should be undertaken to assure the preservation of “confidentiality” in circumstances in which counsel undertakes to represent multiple clients. Janousek involved a dispute between a minority member of a limited liability company and the majority members. Counsel represented the company and the majority members at the company’s expense. The minority member sought access to the communications between the company’s counsel and the majority members.