26.28 - A. Overview
Jurisdiction | New 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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- 26.0 - I. Introduction
- 26.1 - II. Background Of The Attorney-Client Privilege
- 26.2 - A. General Principles
- 26.3 - B. Attorney-Client Privilege And Rules Of Professional Responsibility
- 26.4 - C. Exceptions To The Attorney-Client Privilege
- 26.5 - 1. At Issue Waiver
- 26.6 - 2. Inadvertent Disclosure
- 26.7 - 3. Public Policy Exceptions
- 26.8 - 4. Crime-Fraud Exception
- 26.9 - D. The Privilege And Third Parties
- 26.10 - 1. Legal Staff
- 26.11 - 2. Other Professionals
- 26.12 - 3. Common Interest Doctrine
- 26.13 - III. Attorney-Client Privilege For Corporate In-House Counsel
- 26.14 - A. Overview
- 26.15 - B. Important Differences
- 26.16 - C. The Attorney-Client Privilege And The Upjohn Decision
- 26.17 - 1. Corporate Privilege Tests
- 26.18 - 2. Upjohn Decision
- 26.19 - 3. The Upjohn Warning
- 26.20 - 4. Upjohn And Practical Challenges
- 26.21 - 5. Upjohn And The States
- 26.22 - D. Attorney-Client Privilege And Attorney Directors
- 26.23 - 1. Requirement To Notify Board
- 26.24 - 2. Other Exceptions To The Privilege
- 26.25 - 3. Differentiation Of Roles Between Attorney And Director
- 26.26 - E. Duty To Report
- 26.27 - IV. The Attorney Work Product Doctrine
- 26.28 - A. Overview
- 26.29 - B. Policy Considerations
- 26.30 - C. Exceptions To Attorney Work Product
- 26.31 - 1. “In The Regular Course Of Business”
- 26.32 - 2. “Substantial Need”
- 26.33 - V. Conclusio
- Appendix
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