Privilege and work product - Work-product doctrine

Learning Outcomes

After reading this article, you will be able to explain the work-product doctrine, distinguish it from the attorney-client privilege, identify what materials are protected, and recognize when work product may be discovered. You will also be able to apply these principles to MPRE-style questions and avoid common pitfalls regarding privilege and discovery.

MPRE Syllabus

For the MPRE, you are required to understand the rules governing the protection of attorney work product and its relationship to the attorney-client privilege. This article covers:

• The definition and scope of the work-product doctrine.
• The distinction between work product and attorney-client privilege.
• The types of materials protected as work product.
• The exceptions allowing discovery of work product.
• The heightened protection for attorney mental impressions.
• The application of these principles in litigation and disciplinary contexts.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is most likely protected by the work-product doctrine?
   1. A client's written confession to their attorney.
   2. An attorney's notes summarizing a witness interview conducted in preparation for trial.
   3. The date a client first contacted the attorney.
   4. The client's tax records provided to the attorney.
2. Under what circumstances may an opposing party obtain discovery of materials protected by the work-product doctrine?
   1. If the materials are relevant to the case.
   2. If the party shows substantial need and cannot obtain the equivalent without undue hardship.
   3. If the materials are not privileged.
   4. If the attorney voluntarily discloses them to a third party.
3. Which statement best describes the difference between attorney-client privilege and the work-product doctrine?
   1. Both protect all communications between lawyer and client.
   2. Only the work-product doctrine protects factual information.
   3. Attorney-client privilege protects confidential communications, while the work-product doctrine protects materials prepared in anticipation of litigation.
   4. Attorney-client privilege is broader than the work-product doctrine.
4. Which of the following is least likely to be discoverable, even if the opposing party shows substantial need?
   1. A list of potential witnesses prepared by the attorney.
   2. The attorney’s mental impressions and legal theories about the case.
   3. A copy of a contract obtained from a third party.
   4. A timeline of events created by the attorney’s paralegal.

Introduction

The work-product doctrine is a key protection in civil and criminal litigation. It limits the ability of opposing parties to obtain materials prepared by lawyers in anticipation of litigation. This doctrine is distinct from the attorney-client privilege, which protects confidential communications between lawyer and client. Understanding the scope, limits, and exceptions of the work-product doctrine is essential for the MPRE.

Key Term: Work-Product Doctrine
A legal rule that protects materials prepared by or for a lawyer in anticipation of litigation from discovery by opposing parties.

The Scope of the Work-Product Doctrine

The work-product doctrine shields documents and tangible things prepared by or for a party or its representative—including attorneys, consultants, or agents—in anticipation of litigation or for trial. This protection applies whether the materials are created by the lawyer, the client, or another agent working on the case.

Key Term: Anticipation of Litigation
The requirement that materials must be prepared because of the prospect of litigation, not in the ordinary course of business, to qualify as work product.

What Is Protected as Work Product?

Protected work product includes:

• Attorney notes, research, and memoranda.
• Summaries of witness interviews.
• Chronologies, strategies, and legal theories.
• Draft pleadings and internal communications about the case.

The doctrine covers both factual work product (e.g., summaries of facts, witness statements) and opinion work product (e.g., mental impressions, legal conclusions, or strategies).

Key Term: Opinion Work Product
Work product reflecting an attorney’s mental impressions, conclusions, opinions, or legal theories, which receives special protection from discovery.

Distinction from Attorney-Client Privilege

The attorney-client privilege protects confidential communications between lawyer and client made for the purpose of seeking or providing legal advice. The work-product doctrine, by contrast, protects materials prepared in anticipation of litigation, regardless of whether they are communications with the client.

Key Term: Attorney-Client Privilege
The evidentiary rule that protects confidential communications between a lawyer and client for the purpose of obtaining or providing legal advice.

Exceptions: When Work Product May Be Discovered

Work product is not absolutely protected. An opposing party may obtain discovery of work product if:

• The party shows a substantial need for the materials to prepare its case; and
• The party cannot, without undue hardship, obtain the substantial equivalent by other means.

However, even if these conditions are met, courts must still protect against disclosure of an attorney’s mental impressions, conclusions, or legal theories (opinion work product), which are rarely discoverable.

Key Term: Substantial Need
A showing required to overcome work-product protection, meaning the party cannot prepare its case adequately without the requested materials.

Waiver of Work-Product Protection

Work-product protection can be waived if the materials are disclosed to an adversary or in a manner inconsistent with maintaining confidentiality. However, sharing work product with non-adverse third parties (e.g., co-counsel) does not generally waive protection.

Work Product in Non-Litigation Contexts

Materials prepared in the ordinary course of business, for regulatory compliance, or for non-litigation purposes are not protected as work product. The doctrine only applies when litigation is reasonably anticipated.

Worked Example 1.1

A lawyer interviews a key witness and writes a detailed memo summarizing the conversation and her thoughts about the witness’s credibility. The opposing party requests all notes and memos related to this interview during discovery. Is the memo protected by the work-product doctrine?

Answer:
Yes. The memo was prepared by the attorney in anticipation of litigation and contains both factual and opinion work product. The factual portions may be discoverable only if the opposing party shows substantial need and undue hardship, but the attorney’s mental impressions and legal theories are highly protected and almost never discoverable.

Worked Example 1.2

A company’s compliance officer prepares a report on a workplace accident as part of routine business procedures, not because of any pending or threatened litigation. The plaintiff later sues the company and requests the report in discovery. Is the report protected by the work-product doctrine?

Answer:
No. The report was not prepared in anticipation of litigation but as part of regular business operations. Therefore, it is not protected as work product and must be produced if otherwise discoverable.

Exam Warning

The work-product doctrine does not protect foundational facts—only the materials prepared in anticipation of litigation. Opposing parties may still obtain the facts through depositions or other discovery methods.

Revision Tip

Remember: Opinion work product (mental impressions, legal theories) is almost never discoverable, even if substantial need is shown.

Summary

The work-product doctrine protects materials prepared by or for an attorney in anticipation of litigation, including both factual and opinion work product. Factual work product may be discovered only if the opposing party shows substantial need and undue hardship. Opinion work product—an attorney’s mental impressions and legal theories—receives heightened protection and is rarely discoverable. The doctrine is distinct from the attorney-client privilege, which protects confidential communications for legal advice. Work-product protection can be waived if disclosed to adversaries, and does not apply to materials prepared in the ordinary course of business.

Key Point Checklist

This article has covered the following key knowledge points:

• The work-product doctrine protects materials prepared in anticipation of litigation.
• Work product includes both factual and opinion (mental impressions) materials.
• Factual work product may be discovered only on a showing of substantial need and undue hardship.
• Opinion work product is highly protected and rarely discoverable.
• The doctrine is distinct from attorney-client privilege.
• Work-product protection can be waived by disclosure to adversaries.
• Materials prepared in the ordinary course of business are not protected as work product.

Key Terms and Concepts

• Work-Product Doctrine
• Anticipation of Litigation
• Opinion Work Product
• Attorney-Client Privilege
• Substantial Need