What it means
Cornell's Legal Information Institute says work product is material prepared in anticipation of litigation. It is generally privileged, meaning it is exempt from discovery, though there are exceptions.
Wex divides it into ordinary and opinion work product. Ordinary work product is the result of gathering basic facts or interviewing witnesses.
Wex says it is discoverable on a showing of substantial need, such as when a witness becomes unavailable. Opinion work product records an attorney's mental impressions, ideas or strategies and is almost never subject to discovery.
The US federal rules give the doctrine a text: Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure says that ordinarily a party may not discover documents and tangible things prepared in anticipation of litigation or for trial by or for another party or its representative. The rule lists an attorney, consultant, surety, indemnitor, insurer or agent as examples of representatives.
This entry describes the US federal rule, and courts in other places and under other procedures differ. There is an exception.
Those materials may be discovered if they are otherwise discoverable and the party shows substantial need and cannot, without undue hardship, obtain the substantial equivalent by other means. If a court orders discovery anyway, rule 26(b)(3)(B) says it must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party's attorney or other representative.
The rule also has a carve-out for a person's own earlier statement. Rule 26(b)(3)(C) says a party or other person may, on request and without the required showing, obtain their own previous statement about the action.
A previous statement can be a written statement the person signed or adopted. The advisory committee notes explain the background.
They say the rules had made no explicit provision for materials prepared for litigation, and that two doctrines had developed, with the work product doctrine traced to a 1947 Supreme Court decision. The cases demand a showing of justification before production.
In practice
Real-world examples.
Example
A fictional company's lawyer interviews three witnesses after a workplace accident and writes summaries. The other side asks for the summaries. These are ordinary work product, which a court may order produced only if the other side shows substantial need.
Example
A fictional lawyer writes a memo on which legal theories look weakest in a pending case. This is opinion work product. Wex says it is almost never subject to discovery.
Example
A fictional insurer's investigator prepares a report after a large claim is disputed and a suit is expected. The rule counts an insurer as a possible representative. The report is protected only if it was prepared in anticipation of litigation, not as routine business.
Formula
Calculation
There is no numeric formula, but the rule sets a two-part test for ordinary materials. Production may be ordered if the materials are otherwise discoverable and the requesting party shows substantial need and undue hardship in getting an equivalent by other means. For example, if the only witness has died, substantial need and hardship are more likely, which is the type of case Wex names for unavailable witnesses.Case study
Seen in the real world.
Fictional and illustrative. A manufacturer expects a lawsuit after a product failure and has its lawyer interview two technicians and prepare notes. The plaintiff later asks for all documents. The manufacturer produces its routine inspection logs, which it kept in the normal course of business. It withholds the lawyer's notes as work product.
The plaintiff argues that one technician has since left the country and cannot be reached. A court may find substantial need for the factual parts of that technician's interview. The court orders the factual statements produced, but under rule 26(b)(3)(B) it protects the lawyer's mental impressions and legal theories. The lesson is that facts may be reachable while strategy is not.
Watch out
Common mistakes.
- Assuming every document a lawyer touches is protected, when the rule covers materials prepared in anticipation of litigation or for trial.
- Treating the protection as absolute, since ordinary work product can be ordered produced on substantial need and undue hardship.
- Ignoring the carve-out that lets a person obtain their own previous statement without the usual showing.
Questions
People also ask.
What is work product?
It is material prepared in anticipation of litigation, which is generally exempt from discovery, according to Cornell's Wex.
Can it ever be obtained?
Yes. Ordinary work product may be discovered on a showing of substantial need and inability to get the equivalent without undue hardship. Opinion work product is almost never discoverable.
Who can prepare protected material?
The federal rule covers materials prepared by or for a party or its representative, including an attorney, consultant, surety, indemnitor, insurer or agent.
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