what counts as attorney work material

What is attorneys work product?

attorney's work product n. written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in …

What is the Attorney work product privilege?

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. Acwoo Intern. Steel Corp. v. Frenkel & Co., 165 A.D.2d 752 (1st Dep’t 1990). 3.

What is work product material?

Aug 13, 2014 · The attorney work-product privilege is one of the three primary privileges incorporated into Exemption 5 of the Freedom of Information Act, 5 U.S.C. § 552(b)(5). It protects materials prepared by an attorney or others in anticipation of litigation, preserving the adversarial trial process by shielding materials which would disclose the ...

Can a non-lawyer write a work product report?

Oct 01, 2015 · The attorney work-product privilege/doctrine protects from disclosure to third parties materials that are prepared by or for a party or its representative motivated by or in anticipation of litigation. Note that it does not protect documents prepared for commercial transactions or other non-litigation related legal work (which may still fall under the attorney …

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 the legal definition of 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 protected under work product?

In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel.

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.

Are work products discoverable?

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.

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

Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection. The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege.Dec 2, 2015

Which of the following may not be protected under the attorney-client privilege?

Which of the following may not be protected under the attorney-client privilege? A client who orally confesses to a crime. Correct!

Are communications between attorneys work product?

This article focuses on the attorney work-product doctrine as applied by California state courts and how it differs from attorney-client privilege. Communications between attorney and client, to include necessary third parties, are protected by the attorney- client privilege under Evidence Code section 952.

How do I know if a file is privileged?

Accurately Identify Privileged Documents Because of this strict requirement, maintaining a rolling privilege log citing, in detail, each document to be withheld, along with dates, purpose, authors, recipients, document description, and what type of privilege is being asserted, is invaluable.Feb 6, 2020

What is excluded work product?

If an assembly causes damage to something the builder of that assembly also built, then the builder's insurance company will typically enforce what is referred to as the “Work Product Exclusion.” The builder's carrier will not, usually, cover repairs to damages that builder's work caused to anything that builder built.Mar 4, 2015

Under what circumstances can an attorney reveal information about the client that the attorney obtained during the representation of that client quizlet?

A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

Under what circumstances can an attorney reveal information about the client that the attorney obtained during the representation of that client?

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).

What is attorney work product?

n. written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Their importance is that they cannot be required to be introduced in court or otherwise revealed to the other side.

Why should the judge not have allowed a page from the notes of the defense lawyer at trial to be admitted at the

Reardon, claimed that during the hearing, the judge should not have allowed a page from the notes of the defense lawyer at trial to be admitted at the hearing because the notes constitute the attorney's work product.

What is a legal nurse consultant?

Legal nurse consultant: a role for nephrology nurses. Though Oklahoma courts have not ruled on this specific fact pattern, the court cited cases showing the weight of authority supports the notion that clients are the legal owners of their case files, including the attorney's work product.

What is silence golden?

Silence is golden: advice for avoiding breaches of confidentiality. BY engaging the CPA's services under a Kovel letter prepared by an attorney, the CPA can freely communicate with the client under protection of the attorney-client privilege, and the work papers prepared by the CPA can be protected from discovery under the attorney's work product ...

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 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 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 attorney-client privilege?

The attorney-client privilege applies in limited circumstances, in particular: Requests for legal advice from a client to an attorney. Requests for information from an attorney for information needed to formulate or provide legal advice. The legal advice is actually given by the attorney.

Who is a third party?

A third party is generally anyone other than (a) the company’s lawyers, (b) employees of the company with a “need to know,” (c) certain agents of the company and the attorney, and (d) any parties with whom the company has a joint defense or common interest agreement.

What is self critical analysis?

In some jurisdictions, the self-critical analysis privilege is a qualified privilege that encourages companies to honestly evaluate themselves in light of some problem or incident yet protects the company from that report or analysis from being used against it in litigation.

What happens if you get it wrong?

If you get it wrong, the privilege may be lost. For example, sharing privileged communications with third party contractors/consultants , public relations firms, insurance brokers, and other third parties may destroy the privilege. Whether or not this so depends on the facts and the laws of any particular state.

Is legal advice privileged?

Legal advice is broader than just litigation-related communications, i.e., it covers all legal advice including transactional and regulatory. Business advice, however, is never privileged, and – for in-house counsel in particular – the line between the two can appear blurry.

Is a client's communication privileged?

Unless all three of these prongs are met, the communication is not privileged. The purpose of the privilege is to allow clients to discuss issues openly in order to obtain legal advice from both in-house and outside counsel without fear that those communications will be disclosed to third parties.

What is the work product doctrine?

The work-product doctrine is a judge-created doctrine, and as initially crafted, protected from discovery written statements, private memoranda and personal recollections prepared by an attorney in anticipation of litigation.1 The intention was to create a zone of privacy around the attorney so as to allow the preparation and development of legal theories and strategies with an eye toward litigation, free from unnecessary intrusion by his adversaries.2

What is mandatory arbitration?

Many provisions contain specific requirements, such as the parties agreeing to use a specific entity (like the American Arbitrations Association), the use of a specific number of arbitrators (typically one or three) and/or the distinction of what specific claims the arbitrator is allowed to decide (some provisions exclude fraud and other claims). All of these issues deal with an arbitrator’s jurisdiction to decide a claim.

What is dual purpose document?

Another tough issue is presented by dual-purpose documents — documents created for both a business reason and in anticipation of litigation. Work-product protection will not be afforded the document if it would have been prepared in substantially similar form or content irrespective of the expected or anticipated litigation. The pertinent question is what would have happened had there been no litigation threat—that is, would the party seeking work-product protection have generated the document if it were acting solely for a business-related purpose?12 To answer this inquiry, courts focus on the form, or content of the document and ask whether the document would have been prepared in substantially similar form but for the prospect of litigation. If this showing can be made, the privilege applies, but if the document would have been prepared in the same form regardless of the threat of litigation, the document goes unprotected.13

Do contractors need a lien waiver?

Contractors expect lien waivers to be submitted over the course of a construction project. Most states have standard forms that can be used to ensure these agreements are properly recognized in court. A recent federal case discussed the effect of leaving portions of a lien waiver blank, ostensibly to carry out the intent of an oral agreement.

What is caveat emptor in Georgia?

In Georgia, the long-standing rule in real estate purchases is caveat emptor (“let the buyer beware”). There is one exception: a negligence action against a builder/seller. A builder/seller may be held liable in negligence where a dwelling is sold containing latent defects that the builder in the exercise of ordinary care knew or should have known and that the buyer could not have discovered in the exercise of ordinary care. Georgia courts have not previously addressed whether this exception applies to an ordinary seller of real estate who performs its own repairs on the dwelling (i.e., whether an ordinary seller who performs repairs is a builder/seller under the exception to caveat emptor).

What is the FAA in real estate?

The Federal Arbitration Act (FAA) evidences a congressional policy to encourage arbitration, and although parties are free to agree that state arbitration law applies, the state law may be pre-empted by the FAA if the transaction involves interstate commerce. In this case, the issue presented was whether an agreement to purchase real estate was a transaction in interstate commerce, and thus implicating the FAA, or one involving purely intrastate commerce. South Carolina courts had not previously addressed this issue presenting a case of first impression. In this case, two parties entered into a Home Purchase Agreement, which contained a Mandatory Binding Arbitration provision stating that all disputes should be resolved by arbitration. The purchaser initiated a lawsuit against the seller alleging numerous construction defects in the dwelling and contending that the arbitration clause was unenforceable under the South Carolina Arbitration Act because the arbitration clause was not on the first page of the Agreement and not identified by capital letters and underlining, all of which are required under the South Carolina Act. The seller contended that the arbitration clause complied with South Carolina law, and thus was enforceable, and alternatively that the arbitration provision was enforceable under the FAA because the sales transaction involved interstate commerce. The seller argued that the sales agreement involved interstate commerce because although it was entered in South Carolina: 1) it required the seller to obtain a warranty from a company in Georgia and to submit any claims to that company in Georgia; 2) the home mortgage was financed by a North Carolina branch of a bank; and 3) the contractor used subcontractors, materials and suppliers from outside of South Carolina. The lower court found the arbitration provision in the Agreement did not comply with the South Carolina Arbitration Act, and also found that the agreement was not subject to the FAA, as the seller did not sufficiently demonstrate that the transaction involved interstate commerce.

Can a dual purpose document be subject to work product protection?

Looking at the totality of the situation, the court concluded that a dual-purpose document could nevertheless be subject to work-product protection if the document was created in anticipation of litigation and would not have been created in substantially similar form, but for the prospect of litigation.15

What is the work product rule?

The “work product rule” is closely related to the attorney-client privilege but is broader because it protects any material, regardless of whether it is confidential, prepared by the attorney, usually in anticipation of litigation. In Levy v.

What is open records officer?

Open records officers must be aware of these privileges to avoid accidental disclosure of protected information. In order for the attorney-client privilege to apply, an agency must demonstrate that: 1) the asserted holder of the privilege is or sought to become a client; 2) the person to whom the communication was made is a member of the bar ...

What is the RTKL?

The RTKL defines “privilege” as “ [t]he attorney-work product doctrine, the attorney-client privilege, the doctor-patient privilege, the speech and debate privilege or other privilege recognized by a court interpreting the laws of this Commonweal th.” 65 P.S. § 67.102.

In determining fair use, what makes the use of a copyrighted work "transformative"?

In determining fair use, what makes the use of a copyrighted work "transformative"?

Example of Transformative Use

The transformative use doctrine is relatively new. In 1994, the U.S. Supreme Court reviewed a case involving a rap group, 2 Live Crew, in the case Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

Varieties of "Transformative" Fair Use

Below are summaries of select cases involving "transformative claims."

Courts May Order Discovery of Work Product—Within Limits

• Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Notably, Rule 26(b)(3) addresses trial preparation materials and provides, “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial …

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Not All Work Product Is Equal

Challenging Work-Product Designations