what is attorney work product underlying facts

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.

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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 …

What is the work product doctrine in law?

Work Product Doctrine Qualified • May be overcome by showing substantial need & showing there is no other access to information without undue hardship • Yet, mental impressions, conclusions, opinions & legal theories of attorney remain protected FRCP 26(b)(3) Work Product Doctrine Tips for Preserving • Identify work product & create ...

Does work product protection apply to in-house lawyers?

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

Sep 10, 2013 · 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 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?

Material prepared in anticipation of litigation. Generally, work product is privileged, meaning it is exempt from discovery.

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 work product protection and why is it important in a legal practice?

The purpose of the work-product doctrine is laid out in California Code of Civil Procedure § 2018.020. It is intended to preserve privacy in trial preparation so as to encourage thorough trial preparation and investigation of both favorable and unfavorable aspects of a case.Feb 25, 2014

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

What is a work product example?

Work Product means any and all works, including work papers, notes, materials, approaches, designs, specifications, systems, innovations, improvements, inventions, software, programs, source code, documentation, training materials, audio or audiovisual recordings, methodologies, concepts, studies, reports, whether ...

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

Who holds the work product protection?

attorney clientProc. § 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.

Who does the work product privilege belong to?

Whoever creates work product has the right to assert the privilege – typically attorneys and their clients (or “representatives” of either). So long as it was created in anticipation of litigation and meets the other prongs of the test set out above in No. 1.Jun 5, 2019

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.

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

The attorney-client privilege protects from disclosure to third parties confidential attorney-client communications that relate to legal advice. ... The work product doctrine protects from disclosure to third parties documents and tangible things that a party or its representative prepares in anticipation of litigation.

What does the attorney-client work product doctrine protect?

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. See: Fed.

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

Does the work product doctrine apply to wrongful conduct?

The work product doctrine does not apply to documents that may establish wrongful conduct, which are carved out by the crime-fraud exception. Interestingly, the earliest Colorado decision to address the crime-fraud exception to the work product doctrine came before Hawkins explicitly established the doctrine itself. In A v. District Court, the Colorado Supreme Court considered whether documents prepared by counsel for specific civil litigation were protected from discovery under the work product doctrine in grand jury proceedings. 49 The Court noted that the nature of civil and grand jury proceedings was vastly different, and the alignment of parties in such proceedings was not similar. 50 Based on this, the Court held that “the civil litigation in which the work-product was gathered is not so closely related to the grand jury investigation as to require the application of the work-product exemption.” 51

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.

What is attorney client privilege?

The attorney-client privilege and the work product doctrine are sometimes confused. The attorney-client privilege is similar to, yet distinct from, the work product doctrine, and the differences are important. The attorney-client privilege aims to protect confidential communications between the attorney and the client for the purpose ...

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.

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 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).

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 the work product privilege?

The work-product privilege or doctrine 1 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. The Court reasoned that to allow otherwise would be contrary ...

Why is information collected?

But information and materials may be collected because a law or regulation requires it and, at the same time, it may also be collected in anticipation of litigation. Under these circumstances, the information may qualify as work product.

Why reject the Government's public document argument?

("Further, we reject the Government's 'public document' argument because it misconstrues the nature of the asserted privilege. The underlying communications between Counsel and Appellant regarding his submission of Form I 485 are privileged, regardless of the fact that those communications may have assisted him in answering questions in a public document. Adopting the Government's reasoning would lead to the untenable result that any attorney-client communications relating to the preparation of publicly filed legal documents -- such as court pleadings -- would be unprotected."), cert. denied, 541 U.S. 982 (2004)

What is attorney client privilege?

The attorney-client privilege protects communications between clients and their lawyers involving the former's request for legal advice. Although the privilege can extend to corporations' collections of internal data, most courts conclude that business rather than legal concerns motivated such compilations, and find they are not protected.

Who testified about the demeanor of a client?

(in a criminal case, finding that a lawyer could testify about a client's demeanor without violating the attorney-client privilege; "Review of the record in this case reveals that the petitioner's divorce attorney, Gerard Cutrone, Esquire, and the mediator, Diane Blank, testified regarding their observations, not privileged communications with the petitioner. As previously noted in this Report, Attorney Cutrone recalled that there was nothing unusual in the petitioner's behavior on the day of the mediation, which was the day prior to the murder. . . . Likewise, the divorce mediator, Diane Blank, also testified at trial regarding her observations of the petitioner during the mediation. . . . Blank also explained that if she had perceived there was an observable threat that someone might be in danger to themselves or others, she would immediately have stopped the mediation. . . . In this case, Blank recalled that the petitioner was dressed appropriately and spoke properly during the proceedings."; "Under the circumstances present here, it was not error to admit the testimonies of these witnesses concerning their observations of the petitioner on the day before the murder.")

Does Progressive produce copies of documents 117 and 119?

(" [T]hese do not reflect a distribution list, and only show the substance of the email and the email's author. Again, although Progressive represents that these documents were sent by IAC [Insurance Association of Conn.] counsel to the IAC's members, there is no evidence before the Court as to whom these documents were actually sent. Accordingly, the Court therefore concludes that Progressive has not borne its burden of showing that documents 117 and 119 are protected by the attorney-client privilege. Therefore, Progressive shall produce copies of documents 117, 119-121, 127, 128, and 157.")

Why did the City choose the selection tools?

(holding that the reason a city implemented certain "selection procedures and tools in promoting police officers" amounted to discoverable facts; "The reasons that the City chose particular selection tools are facts -- unless the only reason that the City chose the selection tools was because its attorneys advised it to do so. Because the reasons are facts, not communications, they are not privileged. This is so even if those reasons were articulated in, or even stemmed from, communications between the City and its attorneys.")

What is title opinion?

(finding that a title opinion can deserve privilege protection; "From the general information provided to us, attorney-authored title opinions, insofar as they contain legal advice based on a confidential client communication, appear to fall within that doctrine's ambit. According to one commentator, 'title opinions are much more than just a recitation of that which appears in the public records. They constitute the attorney's opinion concerning title to the property.' . . . [A] particular title opinion, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met. To make this determination, the particular title opinions must be examined." (footnote omitted))

Is the scope of representation within the attorney-client privilege?

(" [N]either the acts or services performed by an attorney during the course of his representation, nor the scope of representation, are within the attorney-client privilege because they are not 'communications.' Nor are 'general topics of attorney-client discussions' or ultimate 'legal conclusions' of counsel protected.")

History of The Work Product Doctrine

• The work product doctrine was first established in 1947 in the US Supreme Court’s landmark case Hickman v. Taylor.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 dro…

See more on cl.cobar.org

The Work Product Doctrine in Colorado

The “Substantial Need” Exception

The Crime-Fraud Exception

Work Product Protection For Expert Witnesses

Comparing The Work Product Doctrine with The Attorney-Client Privilege

Conclusion