Work product doctrine
Encyclopedia
In American civil procedure
, the work-product doctrine protects materials prepared in anticipation of litigation from discovery
by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-product privilege (somewhat erroneous terminology), and the work-product exception.
. Unlike the attorney-client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than the attorney him/her self: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his/her own use in prosecuting the client's case . . . mental impressions, conclusions, opinions, or legal theories."
However, the work-product doctrine is also less powerful than the attorney-client privilege because it is not a privilege, and therefore may be overcome by a showing of necessity, as described above.
, in which the Supreme Court
affirmed a United States Court of Appeals for the Third Circuit
decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney. The Supreme Court, acting at the recommendation of the Advisory Committee of the Judicial Conference
, later enshrined this doctrine formally in the Federal Rules of Civil Procedure
as Rule 26(b)(3).
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
, the work-product doctrine protects materials prepared in anticipation of litigation from discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
by opposing counsel. It is also known as the work-product rule, the work-product immunity, the work-product privilege (somewhat erroneous terminology), and the work-product exception.
Doctrine
Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable, and may be shielded from discovery by a Protective Order, unless the party seeking discovery can demonstrate that the sought facts can only be obtained through discovery and that those facts are indispensable for impeaching or substantiating a claim. That is, the party unable to obtain the information has no other means of obtaining the information without undue hardship. For example, the witness may have left the country. Where the required showing is made, the court will still protect mental impressions of an attorney by redacting that part of the document containing the mental impressions.Comparison with attorney-client privilege
The work-product doctrine is more inclusive than attorney-client privilegeAttorney-client privilege
Attorney–client privilege is a legal concept that protects certain communications between a client and his or her attorney and keeps those communications confidential....
. Unlike the attorney-client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than the attorney him/her self: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his/her own use in prosecuting the client's case . . . mental impressions, conclusions, opinions, or legal theories."
However, the work-product doctrine is also less powerful than the attorney-client privilege because it is not a privilege, and therefore may be overcome by a showing of necessity, as described above.
History
The work-product doctrine originated in the 1947 case of Hickman v. TaylorHickman v. Taylor
Hickman v. Taylor, 329 U.S. 495 , is a United States Supreme Court case in which the Court recognized the work-product doctrine, which holds that information obtained or produced by or for attorneys in anticipation of litigation may be protected from discovery under the Federal Rules of Civil...
, in which the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
affirmed a United States Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney. The Supreme Court, acting at the recommendation of the Advisory Committee of the Judicial Conference
Judicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
, later enshrined this doctrine formally in the Federal Rules of Civil Procedure
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
as Rule 26(b)(3).