who owns attorney work product that has been paid for

Who owns the work product?

Under the law, the general rule is that the copyright in and to the work product of an individual employee or independent contractor is owned by that individual unless an exception applies. The “Work for Hire” doctrine is an exception to such rule.Nov 2, 2021

Does attorney work product belong to the client 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

Is work product a privilege?

Generally, work product is privileged, meaning it is exempt from discovery. However, there are exceptions. Work product is divided into two categories: ordinary and opinion.

What is attorney work product Illinois?

Attorney work product is another area in which Illinois law differs from federal law. Under federal law, work performed by or for a party, its attorney, or its other representative in anticipation of litigation is protected from discovery. Fed.Sep 22, 2020

Who owns the work product privilege?

attorney§ 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.

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.

What is protected by the 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.

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

Decision Highlights a Key Difference Between Attorney-Client Privilege and Work Product Doctrine Protection. The attorney-client privilege provides absolute but fragile protection. In contrast, work product doctrine protection can be overcome — but offers more robust safety than the privilege.Dec 2, 2015

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.

Are attorney billing records privileged Illinois?

2d 626, 635 (7th Circ. 1990). Generally, information regarding a client's fees is not protected by the attorney/client privilege because payment of fees is not a confidential communication between the attorney and client, but an economic transaction, incidental to the relationship.

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 does confidential and privileged mean?

Privileged and confidential communication is the interaction between two parties having a legally protected, private relationship. Law cannot force such parties to disclose the content of communication made between them.

What is the rule for a paycheck?

If you are an employee, the general rule is that all of the work you do on the job – and the rights to that work, such as copyright, the right to license or sell it, and so on -- belong to your employer. Even if you invent or design something that makes your employer lots of money, you are not entitled to a share of that profit. Your paycheck is intended to cover the work you are paid to do, including your creative work and innovations. This rule applies to all work that falls within your job description, created at least in part for your employer, using your employer’s facilities, and so on.

How many types of works for hire are there?

Works for Hire. There are nine types of works for hire. If you create one of these things as an independent contractor, it will belong to the firm that hired you to create it if you have entered into a written agreement to that effect. If you don’t have a written agreement, you will own the work.

What is an independent contractor?

An independent contractor, by comparison, is in business for him- or herself, who is not managed or directed by the hiring firm, often works on a project basis, and determines the hours, location, and means of completing the job independently.

Do independent contractors have copyright rights?

Independent contractors, in contrast, don’t automatically give up their ownership rights to work they create. If your work is creative and subject to copyright, you will own that copyright unless you have agreed otherwise in writing. The rules here depend on whether you have created a “work for hire.”

Do employees have rights to work?

Generally, employees have very few (if any) rights to work they create on their employer’s dime. You are an employee if your employer has the right to dictate and control how you do your work, including the time, place, and methods by which you do your job.

Fred C. Zacharias

This article addresses scenarios in which a lawyer and client might disagree about the potential disclosure of attorney work product. The recent Restatement of the Law Governing Lawyers takes the emphatic position that work product is the client's to waive, or not, entirely at the client's discretion.

Abstract

This article addresses scenarios in which a lawyer and client might disagree about the potential disclosure of attorney work product. The recent Restatement of the Law Governing Lawyers takes the emphatic position that work product is the client's to waive, or not, entirely at the client's discretion.

What is 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 ...

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

Does the work product doctrine apply to wrongful conduct?

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. In A v. District Court, the Colorado Supreme Court considered whether documents prepared by counsel for specific civil litigation were protected from discovery under the work product doctrine in grand jury proceedings. 49 The Court noted that the nature of civil and grand jury proceedings was vastly different, and the alignment of parties in such proceedings was not similar. 50 Based on this, the Court held that “the civil litigation in which the work-product was gathered is not so closely related to the grand jury investigation as to require the application of the work-product exemption.” 51

History of The Work Product Doctrine

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 ne...

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The “Substantial Need” Exception

The Crime-Fraud Exception

Work Product Protection For Expert Witnesses

Comparing The Work Product Doctrine with The Attorney-Client Privilege

Conclusion