what is attorney work product tennessee

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.

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What is attorney work product privilege?

Nashville, Tennessee 615‐726‐5767 [email protected]. Attorney-Client and Work Product Privileges - Overview • What is a “Privilege”? • Preserving Attorney-Client and Work Product Privileges • Waiver • Avoiding unintentional privilege waivers • Possible beneficial privilege waivers • Strategies for Gathering ...

Can a lawyer create work product?

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 are the elements of the product doctrine of attorney client privilege?

RPC 1.16(d) states that a lawyer who is discharged by a client, or withdraws from representation shall promptly surrender papers and property to which the client is entitled and any work product prepared by the lawyer for the client and for which the lawyer has been compensated; and promptly surrender any other work product prepared by the lawyer for the client, provided …

What is the Attorney-work product doctrine?

Attorney Work Product Doctrine: Federal Rule of Civil Procedure 26(b)(3) protects attorney work product from discovery, including: “[1] documents and tangible things that are [2] prepared in anticipation of litigation or for trial [3] by or for another party or its representative.” PRACTICE TIP: An attorney should be engaging outside vendors

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?

Material prepared in anticipation of litigation. Generally, work product is privileged, meaning it is exempt from discovery. ... Opinion work product is the record of an attorney's mental impressions, ideas or strategies, and is almost never subject to discovery.

What is protected under work product?

In California, the work product doctrine absolutely protects from disclosure to third parties writings that contain an attorney's impressions, conclusions, opinions, or legal research or theories (Cal. Civ. Proc. Code § 2018.030(a)).

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.

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

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.

What do attorneys protect products?

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.

Is work product admissible?

Superior Court (2012) 54 Cal. 4th 480, the courts have determined that witness statements obtained by attorneys or their agents are work product. If an attorney's notes or impressions are “inextricably intertwined” with that statement, then the statement is treated as absolutely protected under section 2018.030(a).

Does work product include communications?

Communication is a key part of any attorney-client relationship. ... With that said, no communication is required for the work product doctrine. Memorandums and other notations will most likely be protected if those documents were made in anticipation of litigation.Mar 17, 2020

Are emails between lawyers discoverable?

Emails are discoverable, unless they are subject to the Attorney Client or Work Product Privilege. It is important to note that forwarding a privileged email to a party outside of the attorney client relationship will likely result in the waiver of the privilege.Jul 9, 2018

Can emails be work product?

privilege,” including “mere transmittal communications” and “communications dealing with merely administrative, logistical, or scheduling matters” Ultimately, the District Court concluded that “only a portion of the emails submitted for in camera review constitute protected work product.” The District Court's order ...Apr 25, 2017

Are witness statements 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.

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 ...

How long does a lawyer have to retain a lawyer in Tennessee?

There is no Tennessee Rule of Professional Conduct that requires a retention period of greater than 5 years following the termination of representation; however, the type of representation involved may mandate a longer retention time.

How long do you have to retain client files in Tennessee?

There is no Rule of Professional Conduct in Tennessee that requires a lawyer to retain client files for more than five (5) years following termination of representation; however, the type of representation and file contents may require a longer retention time.

What are ethical questions?

The most common questions received by Ethics Counsel for the Board and therefore issues for consideration are: 1 How long does a lawyer have to retain client files? 2 Who owns the file—the lawyer or the client? 3 What constitutes the client file? 4 What are the lawyer’s responsibilities with regard to client files when a lawyer retires?

What is the Board of Professional Responsibility?

The Board of Professional Responsibility has been requested to issue a Formal Ethics Opinion as guidance for lawyers regarding the lawyer's responsibility with regard to client files .

Can a lawyer retain a file as security?

However, when a client cannot afford to pay the legal bill and surrender of the materials is necessary to avoid materially adverse effect to the client, the lawyer cannot retain the file as security. If the lawyer wants to retain a copy of the file, the lawyer must bear the expense of the copy.

Can a lawyer retain work product?

If the lawyer wants a copy, the lawyer should bear that expense. If the lawyer has not been compensated, the lawyer may retain work product, but only if retention of the work product will not have a materially adverse effect on the client with respect to the subject matter of the representation.

How long should a minor's tax file be retained?

Some files should be retained longer. Files pertaining to minors should be retained until their majority and the expiration of any statutes of limitations. Certain tax files should be maintained until the client is no longer exposed to tax liability.

What does Company A hire?

 Company A hires an outside law firm to do an investigation.  Company A’s Board of Directors’ documents say investigationis“aimed at ‘formula[ting] and recommend[ing]’ changes to the‘policies, standards and procedures’ of the Board of Directors.. .”

Can you label email as privileged?

 Stating that an email is “privileged” will not automaticallytransform that communication into privileged material. In fact, over labeling can cut against you in a privilege fight.The label can mean nothing if it is placed on every calendarinvite or call-in number.

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 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 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.

When was the work product amendment passed?

In 1970, the Supreme Court approved a work-product amendment to the civil-procedure rules. Residing in FRCP 26 (b) (3), the rule provides a step-by-step analysis for determining whether to produce or protect work-product materials.

What did the defendant fail to show it could not obtain the same information by other means?

While the recordings were certainly relevant, the defendant failed to show it could not obtain the same information by other means, such as conducting its own interviews or taking their depositions. This ended the analysis with the work-product doctrine protecting the witness recordings from discovery.

What is the first step in litigation?

Upon learning of an event—an accident, a breach—that makes one contemplate litigation, a party’s lawyer or the lawyer’s investigator interviews nonparties with relevant knowledge. These interviews produce facts, of course, but also could contain, directly or indirectly, the lawyer’s mental impressions or legal strategies about important things such as the strength of a potential claim, liability exposure, or damages.

Does the discovery of trial preparation materials turn upon the degree to which those materials reflect?

The discoverability of “trial preparation materials”—as the Rule labels it—“does not turn upon the degree to which those materials reflect” opinion work-product. The initial question is whether the recordings constitute “trial preparation materials, not whether they contain opinion work product .”.

Is a witness's statement discoverable?

It also noted that witness statements are not automatically discoverable, but could become so if the witness, for example, is reluctant or hostile, or has a lapse of memory. Yet, as one treatise explains, federal courts provide lawyers inconsistent guidance on this first-step, witness-statement issue.

Does the work product doctrine protect witness statements?

Some federal courts hold that the work-product doctrine protects witness statements, while others do not. 10 Fed. Proc., L. Ed. § 26:188 (2019). The Eastern District of Tennessee, in a series of cases, noted a split “across the country” whether the work-product doctrine protects signed witness statements—before deciding that it does not.

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 are the two privileges required for a legal invoice?

Request for legal invoices require analysis of two privileges: the attorney-client privilege and the attorney-work product doctrine. Open records officers must be aware of these privileges to avoid accidental disclosure of protected information.

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.

Is a telephone call to a client protected by attorney-client privilege?

In contrast, an entry that generically states that counsel made a telephone call for a specific amount of time to the client is not information protected by the attorney-client privilege but, instead, is subject to disclosure under the specific provisions of the RTKL. Id. at 373-74.

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 Rule 501?

Rule 501: Privileges Recognized Only as Provided. Except as otherwise provided by constitution, statute, common law, or by these or other rules promulgated by the Tennessee Supreme Court, no person has a privilege to: (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

Why are the statutes and rules consulted?

They are provided for the convenience of the bench and bar. The relevant statutes and rules should be consulted to ensure accuracy and completeness. Many other statutes make certain documents confidential, but the Commission did not view such confidentiality concepts as synonymous with privilege theories.

Who is not required to provide information to a QIC?

Any person who supplies information, testifies or makes statements as part of a QIC may not be required to provide information as to the information, testimony or statements provided to or made before such a committee or opinions formed by such person as a result of committee participation.

Can a psychiatrist testify without consent?

Neither the psychiatrist nor any member of the staff may testify or be compelled to testify as to such communications or otherwise reveal them in such proceedings without consent of the patient except: (1) In proceedings in which the patient raises the issue of the patient's mental or emotional condition;