what is the civ pro rule on attorney work product

Full Answer

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

(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.

What is Rule 26 (b) (3) of the Federal Rules of Civil Procedure?

However, under Rule 26 (b) (3) of the Federal Rules of Civil Procedure , an adverse party may discover or compel disclosure of work product upon a showing of "substantial need" and "undue hardship." Hickman v. Taylor The Supreme Court recognized the work product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947).

What is a core work product of an attorney?

(1) Protection of core work product – attorney mental processes. Core work product - the work product of an attorney or an attorney's representative that contains the attorney's or the attorney's representative's mental impressions, opinions, con­clusions, or legal theories - is not discoverable. (2) Protection of other work product.

When is attorney work product not discoverable?

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. Proc., § 2018.030 (b).)

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

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 ...

What is qualified work product?

Absolute Work Product - This type of work product involves the thoughts, impressions or strategies of a defense attorney. This is generally not discoverable and these materials are afforded heightened protection. Qualified Work Product - This kind of material may contain certain impressions that are not the attorneys.

What work product is discoverable and under what circumstances?

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.

Are emails attorney work product?

The law states that communication between a lawyer and his or her client is only protected if the primary purpose of that communication is to provide legal advice. That means that if a lawyer sent his client business advice in an email, then that email does not fall under attorney-client protection.

What is protected under work product?

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.

Are attorney notes work product?

One critical lesson is that a court generally will afford work product protection to attorney notes, as long as those notes contain “mental impressions or conclusions,” also known as “opinion work product.” Notes that contain purely factual information will, in all likelihood, be subject to discovery.

Does work product apply to emails?

Having reviewed all the emails, the court found that the work product doctrine applied.

Does work product have to be confidential?

In some ways, the work product doctrine is broader than the attorney-client privilege because its protections are not limited solely to communications or confidential matters.

Is work product intellectual property?

“Work Product” shall mean all materials, data, works of authorship, concepts, presentations and reports in connection with Consultant's performance of the Services, including, without limitation, all intellectual property rights therein.

What is a 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.

How do you mark an email legally privileged?

If an email actually is privileged, then putting "Privileged and Confidential" in the email subject line and/or at the top of the email body is the best way to signal that you believe it is covered by privilege.

What is attorney work product California?

The attorney work product doctrine provides absolute protection to written work product that reveals an attorney's impressions, conclusions, opinions or legal research. 3. Attorney work product is defined in the governing statute as material created or derived from a lawyer's work.

What is the purpose of the attorney-client privilege rule?

The rule seeks to provide a predictable, uniform set of standards under which parties can determine the consequences of a disclosure of a communication or information covered by the attorney-client privilege or work-product protection. Parties to litigation need to know, for example, that if they exchange privileged information pursuant ...

What is the preproduction privilege rule?

The rule applies to inadvertent disclosures made to a federal office or agency, including but not limited to an office or agency that is acting in the course of its regulatory, investigative or enforcement authority. The consequences of waiver, and the concomitant costs of pre-production privilege review, can be as great with respect to disclosures to offices and agencies as they are in litigation.

What is the federal rule on subject matter waiver?

To assure protection and predictability, the rule provides that if a disclosure is made at the federal level, the federal rule on subject matter waiver governs subsequent state court determinations on the scope of the waiver by that disclosure. Subdivision (b). Courts are in conflict over whether an inadvertent disclosure ...

What is the rule of a court order?

The rule provides a party with a predictable protection from a court order—predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.

Why is the subject matter waiver taken from Rule 106?

The language concerning subject matter waiver—“ought in fairness”—is taken from Rule 106, because the animating principle is the same. Under both Rules, a party that makes a selective, misleading presentation that is unfair to the adversary opens itself to a more complete and accurate presentation.

Is inadvertent disclosure a waiver?

The rule opts for the middle ground: inadvertent disclosure of protected communications or information in connection with a federal proceeding or to a federal office or agency does not constitute a waiver if the holder took reasonable steps to prevent disclosure and also promptly took reasonable steps to rectify the error. This position is in accord with the majority view on whether inadvertent disclosure is a waiver.

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 ...

What is the limitation on expert discovery imposed by attorney work product doctrine?

The limitation on expert discovery imposed by attorney work-product doctrine may be crucial to developing one’s case. It may be necessary to consult with an expert to determine how to craft pleadings, how to cross-examine opposing experts, and other strategic considerations. National Steel Products.

What is an expert witness?

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him her] as an expert on the subject to which his [/her] testimony relates.” &] (Evid. Code, § 720.) Once qualified, an expert may offer an opinion “ [r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact [.]” (Evid. Code, § 801 (a).) Such an opinion can be based on matters “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code § 801 (b).) The type of material an expert may rely upon is quite broad and encompasses inadmissible evidence, such as hearsay. Simply put, experts wield incredible power in litigation and the attorney’s communications with them should be deliberate and strategic.

Can an expert provide an advisory report?

What’s clear from this three-part test is that a design ated expert may still provide an advisory report that is not discoverable and entirely separate from a discoverable report generated for trial. As set forth below, however, counsel should proceed with such advisory reports with caution. The National Steel court’s decision to allow discovery of the expert’s advisory report is based in part on the opinion set forth in Petterson v. Superior Court (1974) 39 Cal.App.3d 267.

What is the work product doctrine?

Pro. § 2018.030 (a).) 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 derivative or interpretative in nature such as findings, opinions, and consulting expert reports. ( Fellows v. 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. ( Code Civ. Pro. § 2018.020 (a) .) Another purpose is to “ prevent attorneys from taking undue advantage of their adversary’s industry and efforts . (Code Civ. Pro § 2018.020 (b).) The limitation on expert discovery imposed by attorney work product doctrine may be crucial to developing one’s case. It may be necessary to consult with an expert to determine how craft pleadings, how to cross-examine opposing experts, and other strategic considerations.

When an expert gives his opinion as a witness on a material matter in dispute, then his opinion has become?

Indeed, “ [when] it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause. At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others. Such evaluation properly includes appropriate pretrial discovery .” ( Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 203 .)

What is an expert witness?

An expert witness is defined as someone who has “ special knowledge, skill, experience, training, or education sufficient to qualify him her] as an expert on the subject to which his [/her] testimony relates .” &] ( Evid. Code § 720 .)

Why are expert witnesses necessary?

As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation. Likewise, communications with your expert witnesses are necessary. This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion. In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

Is the work product doctrine a sword?

Summary The work product doctrine can be an effective shield for your experts’ consulting opinions in certain circumstances but one must be careful to not use it as a sword.

Can an expert provide an advisory report?

What’s clear from this 3-part test is that a designated expert may still provide an advisory report that is not discoverable and entirely separate from a discoverable report generated for trial. As set forth below, however, counsel should proceed with such advisory reports with caution. The National Steel Court’s decision to allow discovery of the expert’s advisory report is based in part on the opinion set forth in Petterson v. Superior Court (1974) 39 Cal.App.3d 267.

What is the work product privilege?

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 the case or trial strategy. See, e.g., Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C. Cir. 1980).

What is the FTC v Grolier case?

Ct. 2209 (1983), a FOIA case in which it squarely held that materials qualifying as attorney work-product are entitled to perpetual Exemption 5 protection. (See this issue of FOIA Update at 1-2.) In the wake of this significant decision, it is especially useful to focus on other aspects of the attorney work-product privilege, particularly as they have been addressed in cases under Exemption 5.

Can a non-attorney author a work product?

Also, it is well settled that nonattorneys may author documents constituting work-product, so long as they act under the general direction of attorneys. See, e.g., Exxon Corp. v. FTC, 466 F. Supp. 1088, 1099 (D.D.C. 1978), aff'd, 663 F.2d 120 (D.C. Cir. 1980) (report prepared by outside economic consultants relating to litigation strategy).

When Rule 26 and the other discovery rules were adopted, did the members of the bar in general not believe or contemplate?

when Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result. 8

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 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

Why are statements recorded by a claims adjuster a month before litigation became imminent not protected?

held that statements recorded by a claims adjuster a month before litigation became imminent were not protected because the withholding party must meet its burden “of showing a substantial probability of imminent litigation.” 25

What is the standard for discovery of work product?

The standard for discovery of work product for the requesting party is high. The Court’s holding in Cardenas demonstrates that documents protected by work product are discoverable only when they are necessary to prove the plaintiff’s case and the plaintiff is unable to obtain the requested information by any other means. 45 And even with this high burden met, the Court directed the trial court to shield “mental impressions, conclusions, opinions, or legal theories” from discovery to uphold this aspect of work product protection. 46

What is the issue in Hickman v. Taylor?

The issue in Hickman concerned the defense’s refusal to answer an interrogatory directed to the tug owners requesting them to “ [s]tate whether any statements of the members of the crew of the ‘J.M. Taylor’ and ‘Philadelphia’ or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug ‘John M. Taylor.’” 3 The US District Court for the Eastern District of Pennsylvania held that the requested information was not privileged, but the US Court of Appeals for the Third Circuit reversed, leading to the Supreme Court granting certiorari. 4

What is the Hawkins rule?

The Hawkins Court contemplated the challenges of establishing a bright-line rule to mark the decision between ordinary business activity and conduct taking place in anticipation of litigation .

What rule of civil procedure is the work product?

Taylor ruling and its formation of the doctrine of work product, this concept was put into code in the Federal Rules of Civil Procedure in Rule 26 (b) (3).

What is an attorney's work product?

An attorney's work product is very similar to attorney-client privilege, but it broadens the scope of what is protected. If the opposing counsel in a case was able to see everything their adversary prepared for the trial before the trial took place, it would throw off the balance of justice. Over 20 years after the Hickman v.

What Is Work Product Protection?

Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like:

What is discovery in attorney-client privilege?

Discovery is another aspect of attorney-client privilege as communication between client and counsel is not discoverable by opposing counsel. This means that everything a client says to their attorney is not required to be shared with the opposing side of the case.

What is work product?

The legal protection of attorney work product did not fully form until 1947 in the important case of Hickman v. Taylor. Work product doctrine protects the confidentiality of a lawyer's work in preparation for a trial. This includes any tangible or intangible material like: 1 Video and voice recordings 2 Written documents 3 Notes 4 Photographs

What is client privilege?

Attorney client privilege work product refers to the legal protection of the information gathered by an attorney while preparing for a case. Frequently, legal cases can bring up very sensitive information, especially if it gets into the wrong hands, such as the opposing counsel.

Why are conversations protected in a lawyer?

During this preparation, an attorney may ask for sensitive information from their client, and such conversations are protected to ensure that the client is given every opportunity to be entirely forthcoming.

Why do attorneys have work product privileges?

31 Not only does the privilege protect a person’s interests in obtaining complete and effective legal representation, it also seeks to protect the peculiar interests of the attorney in providing such representation without fear of having privacy invaded and the attorney’s thoughts and opinions revealed through the discovery process. 32 Therefore, in order to help eliminate the possibility that the attorney’s opinion work product may be revealed, even in subsequent unrelated litigation, the courts may allow both the client and the client’s attorney to assert the privilege. 33

What is the work product doctrine?

The work-product doctrine does apply to expert witnesses who will not testify and who are only hired on a consulting basis to assist with trial preparation. 52 Thus their identity and the facts and opinions they hold do not, as a general rule, have to be disclosed. 53 But there are exceptions which allow discovery of the work product of a nonwitness expert. Discovery will be allowed when the expert performs a physical or mental medical examination pursuant to Fla. R. Civ. P. 1.360, or when a showing is made to the court of exceptional circumstances which make it impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. 54

What are the exemptions from disclosure?

There are exemptions from disclosure which the courts narrowly construe and which are limited to their stated purpose. 62 One of those exemptions protects from disclosure materials which are prepared by or at the express direction of an agency attorney. 63 An agency attorney is generally defined as an attorney employed by a governmental agency or employed by another public officer or agency to protect or represent the interests of the agency having custody of the record. 64 In order to be exempt from disclosure, the materials must reflect a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency. 65 Thus this exemption only applies to the opinion work product of the attorney and does not protect other materials from disclosure under the act even though they may otherwise qualify as work product. 66 In addition, the exemption only applies if the material was prepared exclusively for civil or criminal litigation, adversarial administrative proceedings, or for such proceedings which are anticipated or imminent. 67 This exemption prevents disclosure only until the litigation or administrative proceeding is concluded. 68 Once the proceedings end, the general principle of disclosure under the act applies and discovery may be allowed. 69

What happens when a party seeks discovery?

Once the party seeking discovery establishes need for the work-product materials, it must then be established that the party is unable to obtain the substantial equivalent by other means without undue hardship. 43 Because the rule specifies obtaining the substantial equivalent of the requested materials, it does not suffice to show an inability to obtain the actual materials or to discover their exact contents. Rather, the requesting party will be denied access to the work product if the court determines that the party has available the means to discover the substantial equivalent of the materials.

What is the requirement of need?

The courts have held that the requirement of need encompasses relevance and diligence on the part of the party seeking discovery of work product. 40 If the materials are not relevant and the party seeking discovery has not been diligent in the preparation of the case, need cannot be established. 41 Some decisions hold that need for work product materials may be established by showing 1) that the underlying evidence has been damaged, dismantled, changed, or is inaccessible to the same examination by the party seeking discovery; 2) that withholding the materials would defeat the interests of justice; or 3) that the materials are not as readily available to the party seeking discovery. 42

What is the primary objective of the work product doctrine?

The primary policy objective of the work-product doctrine is to preserve the effective assistance of attorneys and others employed to help prepare a case for trial. maintaining the privacy of communications between client, attorney, ...

When is a showing of need and inability to obtain the substantial equivalent of the requested materials necessary?

The required showing of need and inability to obtain the substantial equivalent of the requested materials is not necessary when a party seeks discovery of his or her own statement previously given regarding the action or its subject matter. 44 This showing is also unnecessary when a person not a party to the action requests a copy of his or her own statement previously given concerning the action or its subject matter. 45 This statement may be written and signed, approved, or adopted by the party or person making it; it may be recorded or transcribed by other means in verbatim form; or it may be in a form which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously rec0rded. 46