what qualifies as attorney work product california

The Court opined that the qualified attorney work-product protection doctrine provided absolute protection to any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” citing Code of Civil Procedure § 2018.030.

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What is the work product doctrine in California law?

1. California law recognizes three tiers of attorney work product: absolute, qualified, and derivative. 2. The attorney work product doctrine provides absolute protection to written work product that reveals an attorney's impressions, conclusions, opinions or legal research.

Is there any work product protection for attorney-client privilege in California?

Dec 08, 2020 · The California Code of Civil Procedure has stayed in line with the Supreme Court’s interpretation of what qualifies as a lawyer’s work-product. Section 2018.030. of the California Code of Civil Procedure explicitly describes a lawyer’s work-product as any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,”(Cal. Civ. Proc. …

Is the work product of an attorney conditionally protected?

Jan 15, 2022 · Superior Court, 54 Cal.3d 356 (Cal. 1991), the state Supreme Court had limited the application of the work-product protection in criminal cases to writings that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories. But equally true in criminal cases, discovery is limited to disclosing witness statements of only those witnesses the …

Are witness statements work product in California?

Jun 26, 2018 · The attorney work-product privilege would not apply as the information was not gathered by an attorney to prepare for litigation. However, in Coito v. The Superior Court of Stanislaus County, the California Supreme Court held witness statements obtained as a result of interviews conducted by an attorney constituted work product protected by CCP ...

Is a client entitled to attorney work product in California?

As one court noted, "California has two conflicting absolutes, the absolute right of a client to his attorney's work product, and the absolute right of an attorney to protect his or her impressions, conclusions, opinions, and legal research or theories from disclosure." (Metro-Goldwyn-Mayer, Inc.Feb 27, 2012

What is qualified work product?

The work product doctrine is typically raised as a defense to a request for discovery from an opposing party such as the prosecutor or a collateral plaintiff in a civil action. ... Qualified Work Product - This kind of material may contain certain impressions that are not the attorneys.Aug 6, 2010

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

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.

Does work product have to be prepared by an attorney?

Work product only applies to materials prepared in anticipation of litigation and it is not absolute. ... Work product can easily be created by the client and by representatives without involving a lawyer.Jun 5, 2019

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) ...

What distinguishes the two kinds of work product?

Work product is divided into two categories: ordinary and opinion. 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.

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.

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

Does work product include communications?

Communication is a key part of any attorney-client relationship. ... With that said, no communication is required for the work product doctrine. Memorandums and other notations will most likely be protected if those documents were made in anticipation of litigation.Mar 17, 2020

Can you waive work product privilege?

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

Who owns 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.

Is work product admissible?

Superior Court (2012) 54 Cal. 4th 480, the courts have determined that witness statements obtained by attorneys or their agents are work product. If an attorney's notes or impressions are “inextricably intertwined” with that statement, then the statement is treated as absolutely protected under section 2018.030(a).

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.

Insight

The early investigation of a claim can be critical to an early evaluation of potential liability. Evidence can be preserved, and those involved can provide key information regarding the circumstances of the loss.

California Supreme Court Reaffirms Qualified Work Product Protection of Witness Statements

The early investigation of a claim can be critical to an early evaluation of potential liability. Evidence can be preserved, and those involved can provide key information regarding the circumstances of the loss.

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

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 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

Do contractors need a lien waiver?

Contractors expect lien waivers to be submitted over the course of a construction project. Most states have standard forms that can be used to ensure these agreements are properly recognized in court. A recent federal case discussed the effect of leaving portions of a lien waiver blank, ostensibly to carry out the intent of an oral agreement.

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 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 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.