12.3 Work Product Doctrine

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

12.3 WORK PRODUCT DOCTRINE

12.301 Introduction. Lawyers and some courts often mistakenly equate the attorney-client privilege and the work product doctrine. Although both the attorney-client privilege and the work product doctrine provide protection from disclosure in certain situations, they are conceptually and practically different precepts.²⁵⁶

The work product doctrine is at the same time narrower and broader than the attorney-client privilege. The doctrine is narrower because it applies only at certain times—during or in anticipation of litigation. The doctrine is broader because it covers far more than just communications between a lawyer and a client relating to legal advice. Arguing over work product protection involves shifting burdens of proof. The party seeking to prevent the disclosure must establish the doctrine's application,²⁵⁷ while the party seeking the production must prove "substantial need" and the inability to obtain the information elsewhere without "undue hardship."²⁵⁸

Among the other differences between the two doctrines is their age. While the attorney-client privilege derives from Roman times, the work product doctrine has a much less illustrious background. Although some courts (including the Virginia Supreme Court) began some years ago to apply the attorney-client privilege to lawyers' trial preparation materials,²⁵⁹ the work product doctrine in its current form did not exist before the 1947 United States Supreme Court decision in Hickman v. Taylor.²⁶⁰ Even that opinion generated more debate, and current Federal Rule of Civil Procedure 26(b)(3) (which is mirrored in Rule 4:1(b)(3) of the Rules of the Virginia Supreme Court)²⁶¹ appeared only in 1970.

Another important distinction between the attorney-client privilege and the work product doctrine is that the latter is not limited to protecting confidential communications or material. The work product doctrine can protect such non-confidential materials as accident scene videotapes,²⁶² translations of foreign documents,²⁶³ and court reporters' transcripts,²⁶⁴ as long as their creation was motivated by litigation. A Virginia circuit court²⁶⁵ held that a court hearing transcript deserved work product protection.

Communication can be protected by the attorney-client privilege, the work product doctrine, or both. Communications between clients and their lawyers not made in connection with or in anticipation of litigation can never be work product. Likewise, communications between a client's lawyer and a third party can rarely, if ever, be protected by the attorney-client privilege. But communications between clients and lawyers relating to litigation might deserve both protections. Therefore, lawyers seeking maximum protection for their clients' communications should always examine both possible protections.

In the trial of Martha Stewart, for instance, Stewart was found to have waived the attorney-client privilege covering one of her emails by sharing the email with her daughter but was found not to have waived the work product protection. Stewart could not have resisted discovery if she had relied only on the privilege and not also asserted the work product protection.²⁶⁶

12.302 Creating the Protection. While the attorney-client privilege has a significant societal purpose, the work product doctrine has a more modest goal—protecting a lawyer's and a client's right to prepare for litigation without the risk that the other side will see their materials.²⁶⁷

One of the most significant differences between the attorney-client privilege and the work product doctrine is that while the former protects communications between clients and lawyers (or their agents), the literal language of the work product doctrine protects from disclosure materials created by lawyers or the clients themselves or other clients' agents.²⁶⁸ This means that the term "attorney work product" is inappropriately narrow, because the doctrine protects trial preparation materials prepared—without any lawyer involvement—by the client or client representatives such as accountants, insurers, and others.²⁶⁹

The Eastern District of Virginia²⁷⁰ and a Virginia circuit court²⁷¹ inexplicably held that the work product protection applied only if a lawyer prepared, directed, or requested preparation of documents. The Eastern District of Virginia²⁷² and Virginia circuit courts²⁷³ held that work product doctrine can apply without a lawyer's involvement.

Because some courts continue to misapply the doctrine,²⁷⁴ lawyers sometimes hire nontestifying or testifying investigators or experts themselves, essentially "laundering" the experts' reports before submitting them to the ultimate client. While unnecessary under the literal terms of the rule, having the lawyer hire the investigator or expert makes sense if there is a chance that the court might misinterpret the work product rule and protect materials only if a lawyer has some involvement in their preparation. An additional advantage of having the lawyer hire the investigator or expert is increasing the likelihood that a court would find that the expert was hired "in anticipation" of litigation because the client involved a lawyer in the process. Finally, having the lawyer hire the investigator or expert creates at least the possibility that communications between the lawyer and the expert may be entitled to attorney-client privilege protection (if, as explained above, the expert assists the lawyer in providing legal advice to the client). Apart from these justifications, there is no reason why a client cannot hire the investigator or expert directly.

12.303 What Is Covered. Protected work product can include any type of documentary or other tangible material that meets the standard.²⁷⁵ in Virginia, Rule 4:1(b)(3) describes work product. Despite the literal language of the rule, most courts also protect intangible information that meets the standard, thereby allowing deponents to withhold non-documentary information on work product doctrine grounds.²⁷⁶

One type of work product doctrine merits special protection: the "mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation."²⁷⁷ This is called "opinion" work product. opinion work product includes memoranda prepared by a lawyer that reveals impressions and opinions as well as the compilation of otherwise nonprivileged data (such as documents from the adversary) that the lawyer has selected for inclusion in a subset of information.²⁷⁸ Virginia circuit courts²⁷⁹ protected the identity of documents used to prepare deponents. A Virginia circuit court²⁸⁰ extended work product protection to the "identity of specific sources of information, the identity of persons supplying facts or the existence or non-existence of documents." The lawyer's act of including certain information and excluding other information reflects the lawyer's opinion.²⁸¹ The Western District of Virginia²⁸² applied fact work product protection to witness interview transcripts that did not contain enough lawyer "thought" to deserve opinion work product protection. A Virginia circuit court²⁸³ held that witness statements can deserve work product protection.

This issue sometimes arises in depositions. A Virginia circuit court has upheld a party's deposition instruction not to identify documents a witness had reviewed with the lawyer because the lawyer's selection of certain documents to review necessarily reflected the lawyer's opinion.²⁸⁴ Because the work product protection (including its "opinion" component) is not limited to lawyers, presumably a party being deposed could not be compelled to answer any questions about the documents the deponent reviewed in preparation for the deposition—whether the deponent or the deponent's lawyer selected the documents to be reviewed.

As with the attorney-client privilege, the work product doctrine does not protect underlying facts.²⁸⁵ Therefore, the few courts that have addressed the issue find that a party almost surely cannot rely on the work product doctrine to refuse to provide contentions, identification of witnesses, or the identification of documents in response to discovery.²⁸⁶ A Virginia court is one of the few courts to have allowed such an objection to stand.²⁸⁷ The Western District of Virginia²⁸⁸ held that a client was not required to disclose facts a lawyer learned during witness interviews. A more recent Virginia decision took the opposite approach and sanctioned a lawyer for not providing such information.²⁸⁹ A litigant intending to use work product must produce it during discovery.²⁹⁰ one Virginia circuit court criticized a litigant for failing to disclose a witness based on the work product protection.²⁹¹

As might be expected, the work product doctrine does not protect from disclosure the facts that justify its assertion (such as a general description of the investigation performed).²⁹²

12.304 When Applicable. The work product doctrine applies only at a specific time—when litigation is underway or anticipated.

The term "litigation" clearly encompasses traditional civil and criminal litigation. it can be difficult to determine whether administrative proceedings meet the definition of "litigation" for work product purposes.²⁹³ The Western District of Virginia²⁹⁴ held that an administrative hearing did not count as litigation for work product purposes. The term "litigation" for work product purposes may not include a government investigation,²⁹⁵ although the existence of such an investigation may establish the reasonable anticipation of actual litigation and thereby meet the work product standard.²⁹⁶

Determining whether a party reasonably²⁹⁷ "anticipates" litigation presents further complexities. The fact that litigation never occurs does not necessarily mean that a client's materials deserve no protection,²⁹⁸ and the fact that litigation actually ensues does not mean that it was reasonably...