Chapter 34 Creating and Asserting Work Product Protection

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

Chapter 34

CREATING AND ASSERTING WORK PRODUCT PROTECTION

34.1 INTRODUCTION

Any potential litigants or their "representatives" can create protected work product, and both clients and lawyers have some power to assert that protection.

• This contrasts with the attorney-client privilege's client-centric principles.

34.2 CREATION OF PROTECTED WORK PRODUCT

The work product rule could not be any clearer in explaining who can create protected work product.

• The protection can extend to "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent)." ¹

34.3 LAWYER NEED NOT BE INVOLVED

Despite this crystal-clear rule language, some courts inexplicably protect only lawyer-created or lawyer-directed work product.

VA The Eastern District of Virginia ² and a Virginia circuit court ³ inexplicably held that the work product protection applied only if a lawyer prepared, directed, or requested preparation of documents.

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Most courts properly apply the rule as written.

VA	The Eastern District of Virginia 4 and Virginia circuit courts 5 held that work product doctrine can apply without a lawyer's involvement.
•	Even pro se parties can create protected work product.

34.4 ADVANTAGES OF A LAWYER'S INVOLVEMENT

Although work product protection does not depend on lawyers' involvement, such involvement can provide some advantages.

• Among other things, lawyers' involvement might provide separate attorney-client privilege protection; help establish that the litigants anticipated litigation (and thus involved lawyers); help demonstrate that the withheld documents were motivated by litigation rather than prepared in the ordinary course of business or for some other non-litigation purpose; bolster an opinion work product protection claim. ⁶

34.5 CLIENT AND LAWYER REPRESENTATIVES

On its face, the work product rule can protect documents created by litigants, prospective litigants or their representatives. [34.501]

Client representatives can create protected work product. [34.502]

• Examples include nonlawyer company employee, including risk management department employee; union official assisting a company employee at an arbitration; potential witness who participated in an email chain communication with the party's lawyer; consultant; investigator; other company assisting the party; forensic accountant; accountant;

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insurance carrier; insurance claims adjuster; public relations consultant; investment banker.

Lawyer representatives can create protected work product. [34.503]

• Examples include computer forensic company; investigator; accountant; paralegal; public relations consultant; FBI agent; litigation consultants assisting in witness preparation; claims adjuster; cameramen preparing surveillance videotape.

Given the broad work product doctrine protection for either clients' or lawyers' representatives, it should not matter who retains or pays such representatives. [34.504]

34.6 FRIENDLY THIRD PARTIES' ROLE

The difference between attorney-client privilege and work product doctrine...