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Work-Product 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, where a material witness may have left the country.  Where the required showing is made, the court will still protect mental impressions of an attorney by redacting (deleting) that part of the document containing the mental impressions.

Comparison with the Attorney-Client Privilege

The work-product doctrine is more inclusive than attorney-client privilege.  Unlike the attorney-client privilege, which includes only communications between an attorney and his client, work-product includes materials prepared by persons other than the attorney himself: anyone may have prepared the materials 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 own use in prosecuting his 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.

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Last modified: 02/28/11

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