what qualifies as 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.1 The 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 Attorney work product doctrine?

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.

What does work product mean in law?

What qualifies as attorney work product? 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. Click to see full answer.

What is the definition of attorney work product?

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 is attorney work product privilege?

Aug 13, 2014 · 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 …

What constitutes work product?

1. Documents and tangible things; 2. Prepared in anticipation of litigation or trial; and 3. By or for the party or by or for the party's representative.

What kind of work falls under the work product rule?

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 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 attorney emails work product?

District Court Confirms Work-Product Doctrine Privilege Covers Only Certain Documents Exchanged With Third Party Consultants. ... However, the District Court did agree that some of the emails were protected by the attorney work product doctrine.Apr 25, 2017

What is excluded work product?

If an assembly causes damage to something the builder of that assembly also built, then the builder's insurance company will typically enforce what is referred to as the “Work Product Exclusion.” The builder's carrier will not, usually, cover repairs to damages that builder's work caused to anything that builder built.Mar 4, 2015

Is research attorney work product?

The general rule is that legal research, records, correspondence, reports, or memoranda are attorney work product to the extent that they contain the opinions, theories, strategies, mental impressions, or conclusions of the client, the attorney, or persons participating in the case with the attorney, such as a jury ...

Can clients create work products?

The client and any of its representatives (whether or not lawyers) can create work product. ... File memos and other uncommunicated documents may qualify for work product protection if they were prepared in anticipation of litigation, and their creation was motivated by the litigation.Sep 10, 2013

Who can assert work product privilege?

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 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.

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.

Can you waive work product?

An adversary may also obtain an attorney's work product if the "privilege" is waived. ... A party can waive the privilege, however, by disclosing it to an adversary directly or if the disclosure substantially increases the chances that the work product will get into the hands of an adversary.Aug 20, 2020

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 attorney client privilege?

Attorney-client privilege is the most robust privilege in California Evidence law. The only circumstances in which the privilege does not apply is when the client is seeking legal assistance in carrying out crime or fraud, or if the attorney believes that the disclosure of the confidential communication is necessary to prevent death ...

What is absolute privilege?

An absolute privilege is given to writings that reflect “an attorney’s impressions, conclusions, opinions, or legal research or theories” (CCP 2018.030 (a)). Such writing is not discoverable under any circumstances. There is qualified protection for all other work product.

Is open discovery allowed in workers compensation?

Many of the procedures and evidentiary rules that dictate civil lawsuits do not apply in workers’ compensation. Generally, open discovery is encouraged in workers’ compensation to facilitate agreements.

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 ...

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, ...

Why is the privilege important?

Because distinct differences have been drawn between fact work product and opinion work product, the privilege, as it exists today, promotes the endeavors of attorneys and others to protect and advance the interests of their clients through the judicial process by protecting individual privacy rights.

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.

Does the work product doctrine apply to Florida?

The Public Records Act applies to the items and materials which are kept by attorneys employed by the State of Florida 59 and, therefore, as a general rule, the work-product doctrine does not apply to protect such items from discovery or inspection.

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 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 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.

What is the work product doctrine?

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.1 The 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

What is mandatory arbitration?

Many provisions contain specific requirements, such as the parties agreeing to use a specific entity (like the American Arbitrations Association), the use of a specific number of arbitrators (typically one or three) and/or the distinction of what specific claims the arbitrator is allowed to decide (some provisions exclude fraud and other claims). All of these issues deal with an arbitrator’s jurisdiction to decide a claim.

What is the FAA in real estate?

The Federal Arbitration Act (FAA) evidences a congressional policy to encourage arbitration, and although parties are free to agree that state arbitration law applies, the state law may be pre-empted by the FAA if the transaction involves interstate commerce. In this case, the issue presented was whether an agreement to purchase real estate was a transaction in interstate commerce, and thus implicating the FAA, or one involving purely intrastate commerce. South Carolina courts had not previously addressed this issue presenting a case of first impression. In this case, two parties entered into a Home Purchase Agreement, which contained a Mandatory Binding Arbitration provision stating that all disputes should be resolved by arbitration. The purchaser initiated a lawsuit against the seller alleging numerous construction defects in the dwelling and contending that the arbitration clause was unenforceable under the South Carolina Arbitration Act because the arbitration clause was not on the first page of the Agreement and not identified by capital letters and underlining, all of which are required under the South Carolina Act. The seller contended that the arbitration clause complied with South Carolina law, and thus was enforceable, and alternatively that the arbitration provision was enforceable under the FAA because the sales transaction involved interstate commerce. The seller argued that the sales agreement involved interstate commerce because although it was entered in South Carolina: 1) it required the seller to obtain a warranty from a company in Georgia and to submit any claims to that company in Georgia; 2) the home mortgage was financed by a North Carolina branch of a bank; and 3) the contractor used subcontractors, materials and suppliers from outside of South Carolina. The lower court found the arbitration provision in the Agreement did not comply with the South Carolina Arbitration Act, and also found that the agreement was not subject to the FAA, as the seller did not sufficiently demonstrate that the transaction involved interstate commerce.

What is caveat emptor in Georgia?

In Georgia, the long-standing rule in real estate purchases is caveat emptor (“let the buyer beware”). There is one exception: a negligence action against a builder/seller. A builder/seller may be held liable in negligence where a dwelling is sold containing latent defects that the builder in the exercise of ordinary care knew or should have known and that the buyer could not have discovered in the exercise of ordinary care. Georgia courts have not previously addressed whether this exception applies to an ordinary seller of real estate who performs its own repairs on the dwelling (i.e., whether an ordinary seller who performs repairs is a builder/seller under the exception to caveat emptor).

What is dual purpose document?

Another tough issue is presented by dual-purpose documents — documents created for both a business reason and in anticipation of litigation. Work-product protection will not be afforded the document if it would have been prepared in substantially similar form or content irrespective of the expected or anticipated litigation. The pertinent question is what would have happened had there been no litigation threat—that is, would the party seeking work-product protection have generated the document if it were acting solely for a business-related purpose?12 To answer this inquiry, courts focus on the form, or content of the document and ask whether the document would have been prepared in substantially similar form but for the prospect of litigation. If this showing can be made, the privilege applies, but if the document would have been prepared in the same form regardless of the threat of litigation, the document goes unprotected.13

Why are mechanics' lien disputes unenforceable?

In a recent case in Arkansas, property owners argued that parts of a lien were unenforceable because it included profits and unincorporated materials.

Can a dual purpose document be subject to work product protection?

Looking at the totality of the situation, the court concluded that a dual-purpose document could nevertheless be subject to work-product protection if the document was created in anticipation of litigation and would not have been created in substantially similar form, but for the prospect of litigation.15

What is the work product doctrine?

The work-product doctrine is different from the attorney-client privilege and can cover certain communications that the attorney-client privilege does not. California law also differs slightly from federal law regarding the work-product doctrine.

Is Nacht a good law?

Second, until the California Supreme Court weighs in, Nacht is still good law, and courts might choose to follow its reasoning in deciding how to classify witness lists and witness recordings. Finally, the court does give a possible hint to a lawyer who is performing a witness interview.