what does the work product doctrine cover non attorney

Actually, documents produced by non-attorneys CAN also be protected work product. The work product doctrine applies to documents or other tangible things prepared by a party or the party's representatives (e.g., lawyers, investigators, assistants, consultants, etc.) in anticipation of litigation or for trial.

Full Answer

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.1the intention was to create a zone of privacy around the attorney so as to allow the preparation and development of legal …

What is attorney client work product?

The attorney-client privilege and work product doctrine are powerful weapons in a litigator's arsenal. They are often the primary means for preventing the disclosure of highly sensitive and potentially damaging documents in litigation. The attorney-client privilege and work product doctrine share many similarities.

What is a product doctrine?

Work Product Doctrine 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 work product rule?

Work-Product Rule Law and Legal Definition. Work product rule is a principle that provides qualified immunity to the work product of an attorney from discovery or other compelled disclosure. The standard was set in the case, Hickman v. Taylor, 329 U.S. 495 (U.S. 1947). The rule was primarily established to protect an attorney's litigation strategy.

What falls under the work product doctrine?

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 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.

Is work product only in anticipation of litigation?

This is incorrect. The work product doctrine only protects from discovery by an adverse party those materials prepared for or by a party, including in-house counsel, in “anticipation of litigation.”

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

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. In addition, work product protection is not absolute.

What is a work product example?

Ordinary work product is documents or facts outside of the attorney's mental impressions. An example of ordinary work product is a bank statement.

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

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.

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.

What is the importance of the work product doctrine?

Generally, the work product doctrine will shield an attorney's mental impressions, conclusions, opinions, and legal theories and thus ensure that counsel's trial strategy will not be compromised in the discovery process.

Are photos work product?

The Court said that photographs do have the potential to be opinion work-product in that they may reflect the mental impressions and theories of counsel. It said that the purpose of work-product is to keep counsel's analysis confidential.

What is the difference between the duty of confidentiality and the attorney-client privilege?

The duty of confidentiality is much broader than the attorney-client privilege. As explained above, the duty of confidentiality applies to ALL information the attorney has about the client; it is not limited to conversations between the attorney and the client.

Where does attorney-client privilege come from?

The attorney-client privilege is the oldest privilege recognized by Anglo-American jurisprudence. In fact, the principles of the testimonial privilege may be traced all the way back to the Roman Republic, and its use was firmly established in English law as early as the reign of Elizabeth I in the 16th century.

What is the meaning 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 work product in accounting?

In civil proceedings (as opposed to criminal ones), the work product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel.

What is the difference between work products and deliverables?

"Work product" and "deliverable" are two management terms used to describe different parts of the same project. A work product includes the beginning stages of a project while the deliverable represents the end of the project.

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.

What is a work product in software engineering?

A work product is a tangible artefact. used during a software development project, for. instance, requirements specifications, class model. diagrams, and use case specifications.]

What is intangible work product?

Tangible work product refers to notes, memos, and similar documents that were prepared in anticipation of litigation by or for a party to the litigation (or by someone else on behalf of a party). In contrast, intangible work product refers to the attorney’s opinions and conclusions prepared in anticipation of litigation.

Is work product separate from attorney-client?

Although the two types of protected information are often referred to together, the work product doctrine is separate and distinct from the attorney-client privilege. One important distinction between them is that the client is ultimately in control of asserting the attorney-client privilege, whereas the attorney is in control ...

Can an attorney's opinion be discovered?

However, intangible work product (the attorney’s opinions, conclusions, or mental impressions) is only discoverable if the opposing party can show that the attorney’s intangible work product is at issue in the case at hand. There must also be a compelling need for discovery of intangible work product.

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 the work product doctrine?

The work-product doctrine is different from the attorney-client privilege and can cover certain communications that the attorney-client privilege does not. California law also differs slightly from federal law regarding the work-product doctrine.

Is there a definition of "qualified work product" in the Civil Discovery Act?

There is no specific definition of what is or isn’t qualified work product in the Civil Discovery Act . California courts have been proceeding on a case-by-case basis and focus on a distinction between derivative/interpretative material on the one hand and nonderivative/evidentiary material on the other. Work product protection generally extends to “derivative” material, or anything created by or derived from an attorney’s work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or facts involved. Anything that’s purely evidentiary is not protected.

Is Nacht a good law?

Second, until the California Supreme Court weighs in, Nacht is still good law, and courts might choose to follow its reasoning in deciding how to classify witness lists and witness recordings. Finally, the court does give a possible hint to a lawyer who is performing a witness interview.

Is attorney-client privilege good law?

Second, until the California Supreme Court weighs in, Nacht is still good law, and courts might choose to follow its reasoning in deciding how to classify witness lists and witness recordings.

Jay Howard Salamon

Actually, documents produced by non-attorneys CAN also be protected work product. The work product doctrine applies to documents or other tangible things prepared by a party or the party's representatives (e.g., lawyers, investigators, assistants, consultants, etc.) in anticipation of litigation or for trial.

David William Neel

If you are asking whether you can assert the work-product privilege for yourself the answer is no. The privilege is called the "attorney work-product privilege" and is meant to protect an attorney's thoughts about the case and the attorney's file and the product resulting from his/her work...

Jon Friedman

You are going to have to clarify your question. I don't know what you are asking but if you are asking can the other side allege a work product protection vs. a pro se litigant, sure, but only to the same extent as they would to a represented party. good luck

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.

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

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

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 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 issue in Hickman v. Taylor?

The issue in Hickman concerned the defense’s refusal to answer an interrogatory directed to the tug owners requesting them to “ [s]tate whether any statements of the members of the crew of the ‘J.M. Taylor’ and ‘Philadelphia’ or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug ‘John M. Taylor.’” 3 The US District Court for the Eastern District of Pennsylvania held that the requested information was not privileged, but the US Court of Appeals for the Third Circuit reversed, leading to the Supreme Court granting certiorari. 4

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.

What is the work product doctrine?

While the attorney-client privilege only protects confidential communications between an attorney and client that are for the purpose of giving or receiving legal advice, the work product doctrine, as codified in Fed. R. Civ. P. 26 (b) (3) , is much broader:

Can work product be waived?

First, the court noted that, like the attorney-client privilege, the work product privilege can be waived if not protected properly. Second, the court observed that claims of work product in the context of third-party interviews are strongest where there is a common interest between the party and the third-party.

Does the work product privilege protect mental impressions?

Further, given that the work product privilege is designed to protect an attorney’s mental impressions, federal common law has extended work product protections to verbal communications even if they are not memorialized in documents and/or in other tangible ways.

Can a party discover documents and tangible things that are prepared in anticipation of litigation or for trial by another party?

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) ….

Is attorney client privilege a foolproof tool?

While the work product privilege can be a useful and important tool to protect information from disclosure, it is far from fool-proof.