26.28 - A. Overview

JurisdictionNew York

A. Overview

The attorney work product doctrine is a close, though sometimes misunderstood, relative of the attorney-client privilege. Like the privilege, the doctrine is a child of the common law but is now codified in many states and at the federal level.

Attorney work product generally includes, “memoranda, correspondence, mental impressions and personal beliefs conducted, prepared or held by the attorney.”3806 In many jurisdictions,3807 including New York and the federal courts,3808 the rule limits the doctrine to work product “prepared in anticipation of litigation or for trial.” This includes information prepared by non-attorneys in anticipation of litigation if the non-attorney is acting as an agent of the party or the party’s attorney.3809 In Warren v. New York City Transit Authority,3810 a New York appeals court held that witness statements taken by an agent of the defendant’s law department before the commencement of litigation were covered by the work product doctrine.

The work product doctrine can serve as an additional independent exception to general discovery rules at the state and federal levels,3811 though materials can often fall under the privilege and work product doctrines. For example, in Manufacturers & Traders Trust Co. v. Servotronics, Inc., a New York court held that a series of six memoranda fell under the privilege as “each of...

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