what is covered by attorney work product?

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 theories and strategies with an eye toward litigation, free from unnecessary intrusion by his adversaries.2

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

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. R. Civ. P. § 26(b)(3). As with attorney-client privilege, work product privilege does not protect underlying facts. See also: Hickman v.

Can a lawyer create work product?

(1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and (2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. Notes

What is work product in a civil case?

Work Product Doctrine What Does it Protect? • Written statements, private memoranda, fact chronologies, mental impressions, personal beliefs & any information assembled by attorneys in anticipation of litigation • In anticipation of litigation = “because of” the prospect of litigation or primarily to assist in litigation

What is the Attorney work product doctrine?

Feb 06, 2018 · In addition, attorney work product beyond that described in subdivision (a), “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Pro. § 2018.030(b).) This qualified work product protection covers material that is …

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 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.

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

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.

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!

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.

What is the purpose of 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 confidential work product?

Confidential Work Product means all proprietary geophysical, geochemical, drilling, engineering or other similar technical data, along with information, reports, studies, analysis, models or similar data and documents that are produced, acquired or developed by the Parties during the Agreement Term as part of the GoM ...

Are client notes work product?

In a recent article in California Trusts and Estates Quarterly, attorneys Ciarán O'Sullivan and Andrew Verriere opine that an estate planner's notes and other internal file materials likely qualify as work product under the California Code of Civil Procedure such that a court would decline to compel their production.Feb 28, 2022

Can communications be work product?

Most courts extend work product protection to “intangible” work product such as oral communications, deposition testimony, etc.Aug 13, 2020

What is the meaning of Rule 501?

(g) Definitions. In this rule: (1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and. (2) “work-product protection” means the protection that applicable law provides ...

Is Rule 502 lower case or upper case?

Rule 502 has been amended by changing the initial letter of a few words from uppercase to lowercase as part of the restyling of the Evidence Rules to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.

What is a lawyer client privilege?

1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product—specifically those disputes involving inadvertent disclosure and subject matter waiver.

What is subdivision G?

Subdivision (g). The rule's coverage is limited to attorney-client privilege and work product. The operation of waiver by disclosure, as applied to other evidentiary privileges, remains a question of federal common law.

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.

Is attorney client privilege a work product?

Similarly, reports and materials produced in the ordinary course of the business do not qualify as work product.

What is the work product doctrine?

Work-product doctrine. In American civil procedure, the work- product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-product exception, and the work-product privilege, though there is debate about whether it is truly ...

When was the work product doctrine first used?

The work-product doctrine originated in the 1947 case of Hickman v. Taylor, in which the Supreme Court affirmed a United States Court of Appeals for the Third Circuit decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney.

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 attorney-client privilege?

Where a defendant alleges ineffective assistance of prior trial or appellate counsel as a ground for the illegality of his conviction or sentence, he shall be deemed to waive the attorney-client privilege with respect to both oral and written communications between such counsel and the defendant to the extent the defendant's prior counsel reasonably believes such communications are necessary to defend against the allegations of ineffectiveness. This waiver of the attorney-client privilege shall be automatic upon the filing of the motion for appropriate relief alleging ineffective assistance of prior counsel, and the superior court need not enter an order waiving the privilege.

How did Eric Miller die?

Dr. Eric Miller died from arsenic poisoning ;Shortly before his death, Miller was bowling with co-workers of his wife, Ann Miller;Bowling party included Mr. Willard, who was romantically involved with Mrs. Miller;While bowling, Miller took a drink of beer that he described as “tasting funny”Miller later hospitalized and died:Upon Miller’s death, Mrs. Miller directed that the body be cremated;Mr. Willard hired an attorney, met with him, then committed suicide before being interviewed by police;According to Mrs. Willard, attorney advised Mr. Willard that he could be charged with the attempted murder of Dr. Miller;District Attorney sought an order from the Superior Court compelling Willard’s attorney to disclose his conversation with Willard.

When is a communication not confidential?

A communication is not confidential when made in the presence of another person whose presence is not essential to the communication. State v. Van Landingham, 283 N.C. 589, 602 (1973) (wife); State v. Murvin, 304 N.C. 523, 531 (1981) (aunt and friend).