CHAPTER §12.03 The Work-Product Doctrine

JurisdictionUnited States

§12.03 The Work-Product Doctrine

[1] Scope of the Work-Product Doctrine

The work-product doctrine protects from disclosure materials prepared in anticipation of litigation or for trial by a party's attorneys or representatives. The work-product doctrine is embodied in Rule 26(b)(3) of the Federal Rules of Civil Procedure157 and the seminal case of Hickman v. Taylor.158 The term "representatives" is broadly defined to include not only attorneys, but consultants, sureties, indemnitors, insurers, and agents.159 As set forth in Rule 26, the work-product doctrine protects not only materials created by the party's representatives, but also by the party itself.160 Because the work-product doctrine applies to both the attorney and the client, the attorney should be able to claim work-product protection even if the client does not.161

There are two kinds of work product: (1) fact work product and (2) opinion work product.162 Fact work product may be discoverable in litigation only if the party seeking disclosure shows a substantial need for the materials and that it is unable to obtain the substantial equivalent of the materials through other means without undue hardship.163 If the party seeking the documents can collect the underlying information contained in the documents, the party likely cannot demonstrate substantial need.164Opinion work product reflects an attorney's mental impressions, conclusions, opinions, or legal theories. Opinion work product is afforded near-absolute protection from disclosure.165

[2] Anticipation of Litigation

The work-product doctrine protects from discovery documents "prepared in anticipation of litigation or for trial." Fed. R. Civ. P. 26(b)(3). Courts generally focus on whether the document was prepared or obtained because of the prospect of litigation. It is not necessary that litigation have actually commenced, but "there must be more than a remote possibility of litigation."166 Determinations concerning whether litigation was anticipated are fact-specific and the application of the phrase "in anticipation of litigation" has resulted in different results in different cases and federal circuits.167

One difficulty that may arise is determining when the attorney work-product doctrine attaches to materials prepared in connection with or in anticipation of litigation. In In re Grand Jury Subpoena, which involved a grand-j ury investigation into the alleged distribution of an adulterated and misbranded device, a federal district court in Massachusetts held that the attorney work-product doctrine did not cover the attorney notes of a conversation between the client and the FDA.168 Once a governmental investigation begins, litigation is sufficiently likely to meet the requirement for "in anticipation of litigation."169 But in that case, the court held that the agency investigation was insufficient for work-product protection, unless there was also a reasonable belief that "either an FDA enforcement action or a products liability suit was likely."170 The court focused on whether the discussions with the FDA resembled adversarial negotiations, and found that the attorney notes in that case were not work product because the decision to contact the FDA was similar to a routine interaction between a regulated entity and a regulator.171 Work-product protection has been held to apply where litigation may arise out of regulatory investigations.172

There are differences among the circuits concerning the scope of work-product protection. Most circuits apply a "because-of-litigation" analysis and protect documents with a dual litigation and business purpose.173 In United States v. Adlman,174 the Second Circuit stated that the "plain language of the Rule, [and] the policies underlying the work-product doctrine suggest strongly that work-product protection should not be denied to a document that analyzes expected litigation merely because it is prepared to assist in a business decision."175 The Adlman court expressly rejected the proposition that work product required a showing that the document was created "primarily or exclusively to assist in litigation."176 According to the court, the "fact that a document's purpose is business-related appears irrelevant to the question whether it should be protected under Rule 26(b)(3)."177 A number of other circuits have employed a similar analysis which protects dual-purpose documents under the work-product doctrine.178 The exact analysis varies by circuit.179 The Fifth Circuit, for example, requires only that anticipation of litigation be the "primary motivating purpose" behind the creation of the document.180

[3] Waiver of Work Product

Unlike the attorney-client privilege, showing work product to a third party will generally not waive work-product protection, if that disclosure is unlikely to lead to disclosure to an adversary. That is because, although the attorney-client privilege is intended to protect the confidentiality of attorney-client communications, the purpose of the work-product doctrine is to protect information from the opposing party in order to encourage effective trial preparation.181 Generally, work product will not be waived unless the information is disclosed to an adversary or in a manner that makes it likelier that the information will be disclosed to a potential adversary.182 Consistent with that principle, drafts are generally protected under the work-product doctrine, even if the final version is disclosed.183

[4] Work-Product Protection and Experts

Before the 2010 amendments to Rule 26 of the Federal Rule of Civil Procedure, most federal courts did not afford protection to information or otherwise protected material provided by an attorney to a testifying expert.184

Under the 2010 amendments to Rule 26 of the Federal Rules of Civil Procedure, attorney communications with experts are protected as work product, subject to three exceptions. In addition, draft expert reports are also protected from discovery as work product.185 The Rule also distinguishes witnesses who may offer both fact and expert testimony but who are not required to provide an expert report. These amendments were intended to protect most attorney-expert communications from discovery as work product.186 Rule 26 applies equally to communications between in-house counsel and a testifying expert, even if in-house counsel is not counsel of record in the litigation.187

Rule 26(b)(4)(C) now provides work-product protection for communications with testifying experts who provide expert reports and states: "Rules [that govern the disclosure of expert information to the other party] protect communications between the party's attorney and [the testifying expert], regardless of the form of the communications."188

However, Rule 26(b)(4)(C) contains three limited exceptions to the protection afforded to attorney-expert communications. The exceptions are for communications that:

(i) relate to compensation for the expert's study or testimony;
(ii) identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
(iii) identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed.189

As with work-product protection generally, attorney-expert communications and draft expert reports may be obtained upon a showing that "the party [seeking discovery] has a substantial need for the discovery and cannot obtain the substantial equivalent without undue hardship."190 According to the Advisory Committee Notes, however, it will be "rare for a party to be able to make such a showing given the broad disclosure and discovery otherwise...

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