Chapter 33 Work Product Doctrine: Historic Perspective

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 33

WORK PRODUCT DOCTRINE: Historic perSpective

33.1 INTRODUCTION

The work product doctrine differ dramatically from the attorney-client privilege in many important ways.

33.2 COMMON LAW ANTECEDENTS

A few early cases hinted at common law protection for lawyers' non-privileged pre-trial work.

33.3 FIRST RECOGNIZED IN HICKMAN V. TAYLOR

In Hickman v. Taylor, 329 U.S. 495 (1947), the Supreme Court recognized such a protection—which differs from the attorney-client privilege covering communications between clients and their lawyers motivated by legal advice and meant to be kept confidential.

33.4 FEDERAL RULES OF CIVIL PROCEDURE

The federal rules eventually codified such work product protection. [33.401]

Federal Rule of Civil Procedure 26(b)(3) provides qualified protection to documents that clients or their lawyers (or representatives of either) prepare in preparation for anticipated litigation or trial. [33.402]

In 2007, Congress adopted some purely stylistic changes. [33.403]

The Federal Rules of Civil Procedure and Evidence continue to evolve. [33.404]

• Among other things, relatively recent rules changes affect inadvertent express waivers (discussed in Chapter 27), subject matter waivers (discussed in Chapter 30), and testifying

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experts' reports and communications (discussed in Chapter 34 and 44).

33.5 CONTINUING FEDERAL COMMON LAW PRINCIPLES

Although federal rules codify much of the work product doctrine, courts still recognize parallel federal common law protection supplementing those rules.

•	Among other things, this federal common law work product protection can extend to non-parties' work product, and to non-documentary intangible work product. 1
VA	The Eastern District of Virginia 2 relied on Hickman3 to protect intangible work product (testimony) under the work product doctrine.

33.6 NAMING THE DOCTRINE

The work product doctrine provides only a qualified immunity from...