Elements of the Work Product Doctrine
- Background. In order for the defense attorney to form a bond of trust with the client, the defense attorney must maintain confidential all communications with the client.
- Examples of the Work Product Doctrine. Work product doctrine is described in Federal Rule of Evidence 502 which is binding on all Federal Courts in the United States.
- Notes. ...
Full Answer
What is considered attorney 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 is attorney work product rule?
Work Product Doctrine. Practical Law Glossary Item 1-501-8810 (Approx. 3 pages) Glossary. 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 a product doctrine?
Work Product Doctrine Definition Protects from discovery documents or material things prepared: • In anticipation of litigation or for trial; and • By or for a party or by or for a party’s representative Work Product Doctrine What Does it Protect? • Written statements, private memoranda, fact chronologies, mental impressions,
What does work product mean in law?
The attorney work-product doctrine, codified in Code of Civil Procedure section 2018.030, sets the boundaries of what is discoverable with respect to section 2034.210. The Code states that “[a] writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Code Civ. Proc., § 20180.030(a).)
What is a work product doctrine in law?
Primary tabs. 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.
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 the purpose of the work product doctrine?
Superior Court (1980) 108 Cal. App. 3d 55, 68.) One purpose of the work-product doctrine is to ensure attorneys have the privacy necessary to prepare cases “thoroughly and to investigate not only the favorable but the unfavorable aspects” of their cases.
Is the work product doctrine part of the attorney-client privilege?
6 Federal privileges are governed by the principles of common law, except as otherwise required by the U.S. Constitution, federal statute, or rules prescribed by the Supreme Court. The most common privilege is the attorney-client privilege. The most common privilege doctrine is the work-product doctrine.Mar 11, 2021
Is the work product doctrine a privilege?
Attorneys should be vigilant when opposing counsel is using a discovery device to dig out strategy rather than unprotected information. The protection accorded attorney work product is technically not a “privilege.” However, the protection is much broader than the attorney-client privilege.
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.
Where does the work product doctrine come from?
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.
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
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 ...
What are the FRCP rules that explain e discovery?
No later than 100 days after the filing of a lawsuit, clients must be prepared to discuss and make cost-driven decisions on important electronic discovery issues such as: (1) the format in which electronic documents will be produced; (2) the manner in which electronic documents will be preserved by the parties; and (3) ...
Is work product doctrine 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. ... An attorney's thoughts, heretofore inviolate, would not be his own.
What is the difference between attorney client privilege and confidentiality?
The main difference between attorney-client privilege and attorney-client confidentiality is that the former is an evidentiary principle while the latter is an ethical principle.
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…
The Work Product Doctrine in Colorado
- The Colorado Supreme Court codified the work product doctrine at CRCP 26(b)(3), effective April 1, 1970.15 This rule allows discovery for information “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative.”16 The rule qualifies this access by requiring a showing of “substantial need” of the materials requested and that the subs…
The “Substantial Need” Exception
- 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 inCard…
The Crime-Fraud Exception
- 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. InA v. District Court, the Colorado Supreme Court considered whe…
Work Product Protection For Expert Witnesses
- 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. CRCP 26(b)(4)(D) now expressly protects drafts of any report and “communications between the party’…
Comparing The Work Product Doctrine with The 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 of maximizing full disclosu…
Conclusion
- The application of the work product doctrine and any potential disclosure of work product remain factually intensive questions that vary from one situation to the next. In applying the doctrine, courts must assess, according to relevant case law, whether litigation is truly imminent, whether a substantial need for the work product exists, the presence of an undue hardship in otherwise obt…
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