what is an attorney generated document under work product

What is attorney work product privilege?

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 …

Can a lawyer create work product?

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 attorney's theory of …

Can the work product doctrine be used in criminal litigation?

Apr 19, 2019 · To be protected under the work-product doctrine, a document prepared in anticipation of litigation, based on the totality of the circumstances, is entitled to protection from discovery, even when the document had more than one purpose.

When is an attorney work product not discoverable?

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). The party claiming the work product privilege must prove that the materials are: 1. Documents and tangible things; 2.

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 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 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 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.

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.

What is the meaning 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.

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!

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.

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

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).

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.

Abstract

A patent owner refused to produce documents related to a patent analysis it performed prior to purchasing the patents based on the attorney-client privilege and the work-product doctrine.

Background

Acacia had an exclusive option to purchase certain patents from a third party, and Acacia's subsidiary, Limestone Memory Systems, acquired title to the patents under that option. Limestone then sued Micron Technology for patent infringement in the Central District of California.

What is Navigant Consulting Inc. v. Wilkinson?

Wilkinson, 220 F.R.D. 467 (N.D. Tex. 2004), Employer investigation into why employees were making surreptitious back-ups of proprietary information was found not to be created in anticipation of litigation. The affidavit from the employer’s attorney indicated that the investigation was to find out if something was wrong and to fix it.

Can work product privilege be waived?

work product privilege can be waived by disclosure. Work product privilege is broader than the attorney/client privilege because its purpose is to protect the adversary process. An attorney may independently invoke the work product privilege and a waiver of the privilege by the client does not waive the privilege on behalf of the client. Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006).

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).

Is an attorney's client's communication confidential?

Not all communications by an attorney and his or her client are covered by the attorney-client privilege. To qualify, the communication must be both confidential and for the purpose of obtaining legal advice. The privilege may not apply, for example, where an attorney acts as a corporate officer, tax preparer, investment advisor, political advisor, public relations advisor, and similar roles.

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 privilege?

states have equivalent rules in their civil procedure codes (but for my purposes I am going to discuss the federal version). The work product privilege protect s from discovery those “documents and tangible things” that are “prepared in anticipation of litigation” by (or for) a party or its representative.

What does "don't think the work product privilege applies" mean?

Which means when you are jotting down thoughts about a merger or a contract, don’t think the work product privilege applies. And unless the attorney-client privilege applies (which requires a communication, among other things) there may be nothing protecting those notes and thoughts.

What are the different types of litigation?

3. What constitutes “litigation”? The good news for those looking to assert the privilege is that what can qualify as “litigation” is fairly broad, including: 1 Judicial proceedings. 2 Arbitration. 3 Mediation. 4 Administrative proceedings. 5 Government investigation. 6 Grand jury investigation. 7 Subpoenas. 8 Letter/communication threatening litigation. 9 On-going class actions or similar multiple-front litigation (think toxic tort litigation in multiple jurisdictions for example). 10 Preparing a complaint. 11 Internal investigations.

When was the privilege first established?

The privilege was first set out in 1947 by the Supreme Court in a case called Hickman v. Taylor . A few decades later, the privilege was codified into the Federal Rules of Civil Procedure in what is now Rule 26 .

Does work product need to be legal advice?

Work product does not need to be “legal advice.”. It’s difficult to waive the work product privilege, e.g., providing it to “friendly” third-parties (like between father and son) is not a waiver. Work product can easily be created by the client and by representatives without involving a lawyer.

Can a party seeking discovery overcome the work product privilege?

A party seeking discovery may overcome the work product privilege if they can show they have a “substantial need” for the materials to prepare their case and they cannot obtain the substantial equivalent of the other party’s work product through “other means” without “undue hardship.”.

Can privileged documents be created in anticipation of litigation?

This means your colleagues on the business side of the house can create privileged documents if (big if) they were created in anticipation of litigation. This also means it’s worth training the business on how best to draft, label, and document when something is created in anticipation of litigation.

What is work product?

Work Product means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, tradenames, logos and all similar or related information (whether patentable or unpatentable) which relates to the Company 's or any of its Subsidiaries ' actual or anticipated business, research and development or existing or future products or services and which are conceived, developed or made by the Executive in connection with or relating to (whether or not during usual business hours and whether or not alone or in conjunction with any other Person) the Executive's position and duties while employed by the Company (including those conceived, developed or made prior to the date of this Agreement) together with all patent applications, letters patent, trademark, tradename and service mark applications or registrations, copyrights and reissues thereof that may be granted for or upon any of the foregoing.

What happens if a contractor does not qualify for work made for hire?

If the Work Product or any portion of the Work Product does not qualify as work made for hire, and/or as otherwise necessary to ensure the Company's complete ownership of all rights, titles and interest in the Work Product, the Contractor shall transfer and assign to the Company all rights, titles and interests throughout the world in and to any and all Work Product.