CHAPTER 4 - 4-4 Work Product

• Jurisdiction: United States

4-4 Work Product

The work-product doctrine's primary purpose "'is to shelter the mental processes, conclusions, and legal theories of the attorney, providing a privileged area within which the lawyer can analyze and prepare his or her case.'"⁸⁴ The work-product privilege thus "preserves the rights of attorneys to thoroughly prepare cases for trial and to investigate both favorable and unfavorable aspects of their cases, while preventing attorneys from taking advantage of their opposing counsel's efforts."⁸⁵ In recognition of the fact that the privilege's "underlying purpose would be totally defeated if the . . . privilege were limited to documents that were prepared in the particular case for which discovery is sought[,]" the Texas Supreme Court has held that the "work product privilege [in Texas] is of continuing duration."⁸⁶

The work-product privilege is firmly implanted in Texas jurisprudence, with its roots dating back to 1940. The privilege has evolved significantly since then, in part to reflect changes in Texas discovery procedures and in part to be more consistent with the federal work-product doctrine.

4-4:1 History of Work-Product Doctrine

The original Texas Rules of Civil Procedure, adopted in 1940 and effective in 1941, included a broad privilege that limited discovery as follows: "the rights herein granted shall not extend to the written communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of such claim or the circumstances out of which same has arisen."⁸⁷ Although this provision encompassed some of the information that is considered work product today, it did not use the term "work product" or address trial-preparation materials specifically;⁸⁸ perhaps for that reason, courts sometimes forget or ignore its role in the history of the work-product doctrine in Texas.⁸⁹

The United States Supreme Court laid the foundation for the modern-day work-product doctrine in 1947, in Hickman v. Taylor.⁹⁰ The question before the Court was "the extent to which a party may inquire into oral and written statements of witnesses, or other information, secured by an adverse party's counsel in the course of preparation for possible litigation after a claim has arisen."⁹¹ The district court had ordered the production of written witness statements obtained by an attorney, a substantive statement of any fact concerning the case that the defendants had learned through oral statements to their attorney, and the attorney's memoranda containing witness statements.⁹² The United States Circuit Court of Appeals for the Third Circuit reversed the district court's order because the information sought "was part of the 'work product of the lawyer' and hence privileged from discovery under the Federal Rules of Civil Procedure."⁹³

In analyzing the issues before it, the United States Supreme Court noted that it was "dealing with an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney . . . without any showing of necessity or any indication or claim that denial of such production would unduly prejudice the preparation of petitioner's case or cause him any hardship or injustice."⁹⁴ The Court concluded that no "rule dealing with discovery contemplate[d] production under such circumstances."⁹⁵ It then provided the following rationale for protecting the information sought:

[A] lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the "Work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.⁹⁶

The Supreme Court was careful to say it was not protecting from disclosure "all written materials obtained or prepared by an adversary's counsel with an eye toward litigation" and that, "[w]here relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had."⁹⁷ But it also concluded that, because "the general policy against invading the privacy of an attorney's course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure[,] . . . a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order."⁹⁸ After analyzing the specific requests before it, the Supreme Court concluded: "If there should be a rare situation justifying production of these matters, petitioner's case is not of that type."⁹⁹

When the Texas Supreme Court amended the Texas discovery rules in 1957, it went beyond Hickman by protecting "all post-occurrence investigations made in connection with the prosecution, investigation, or defense of the claims made in the action[,]" without requiring anticipation of litigation, and by providing an absolute investigative provision that "protected the underlying facts in addition to the investigatory memoranda that memorialized the facts."¹⁰⁰ But the term "work product" did not appear in the discovery rules, and thus a work-product privilege still was not expressly recognized in Texas.

The Texas discovery rules addressed "work product" by name for the first time in 1973, in former Texas Rule 186a, which exempted from disclosure (but did not define) "work product for an attorney."¹⁰¹ Relatedly, former Texas Rule 186a also exempted from disclosure "witness statements" and the identity, "mental impressions and opinions of experts used solely for consultation" (i.e., consulting experts)¹⁰²

Sweeping changes to the Texas discovery rules occurred in 1984, including the elimination of the aforementioned, broad privilege exempting investigative information from disclosure.¹⁰³ Also as part of the 1984 amendments, the work-product privilege was moved from former Texas Rule 186a to former Texas Rule 166b, which provided a series of "investigative" privileges, including the attorney-work-product privilege, party-communication privilege, witness-statement privilege, and consulting-expert privilege.¹⁰⁴ Former Texas Rule 166b applied a "substantial need" and "undue hardship" exception to the party-communication and witness-statement privileges but not to the attorney-work-product or consulting-expert privilege.¹⁰⁵

The Texas Supreme Court did not define "work product" in the 1984 rules. Rather, in case law, it held that the attorney-work-product privilege protected "documents prepared by attorneys or their agents in anticipation of litigation that contain the attorneys' mental processes, conclusions, or legal theories."¹⁰⁶ The court also adopted a two-prong test for assessing whether an investigation was conducted "in anticipation of litigation:" (1) an objective prong, which is satisfied if "a reasonable person would have concluded from the totality of the circumstances surrounding the investigation that there was a substantial chance that litigation would ensue;" and (2) a subjective prong, which is satisfied if "the party resisting discovery believed in good faith that there was a substantial chance that litigation would ensue and conducted the investigation for the purpose of preparing for such litigation."¹⁰⁷

In discussing the objective prong, the Court explained that the "[s]ubstantial-chance-of-litigation" prong "does not refer to any particular statistical probability that litigation will occur[,]" but "simply means that litigation is 'more than merely an abstract possibility or unwarranted fear.'"¹⁰⁸ Also regarding the objective prong, the Court "did not require actual notice of the potential litigation for a party to anticipate litigation. Instead, [it] recognized that 'common sense dictates that a party may reasonably anticipate suit being filed . . . before the plaintiff manifests an intent to sue.'"¹⁰⁹

Between 1987 and 1990, there were several amendments to the discovery rules concerning the party-communication and consulting-expert privileges.¹¹⁰ Perhaps most notably, "[c]onsulting experts' identities, mental impressions and opinions, as well as any documents or tangible things containing them became discoverable under a new standard, which was intended to broaden discoverability, i.e., 'if the consulting expert's opinion or impressions have been reviewed by a testifying expert[,]'"¹¹¹ and the party-communication privilege "was amended to narrow the scope...