Chapter 44 Overcoming Work Product Protection

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

Chapter 44

OVERCOMING WORK PRODUCT PROTECTION

44.1 INTRODUCTION

Adversaries can sometimes overcome litigants' work product protection.

44.2 COMPARISON WITH THE ATTORNEY-CLIENT PRIVILEGE

The work product doctrine's qualified protection highlights one dramatic difference between that doctrine and the absolute attorney-client privilege.

44.3 DURATION OF THE PROTECTION

Courts disagree about work product protection's duration. [44.301]

• This contrasts with courts' recognition that the attorney-client privilege lasts forever.

Courts' disagreement about the work product doctrine's duration can be troubling. [44.302]

• Litigants often do not know which court might ultimately analyze protection for work product they prepared in an earlier case.

Some courts take an expansive view, essentially finding that work product prepared in connection with litigation always deserves protection in later, even unrelated, litigation. [44.303]

VA The Eastern District of Virginia ¹ and a Virginia circuit court ² extended work product protection beyond the litigation in which it was created..

[Page 298]

Some courts take a somewhat narrower view, extending such protection only if the later litigation bears some relation to the earlier litigation. [44.304]

• Litigants frequently satisfy this standard, because the later litigation adversaries' efforts to prove relevance often helps establish that necessary relationship.

In one recurring scenario, some courts decline to protect government's work product generated during a criminal case when an exonerated criminal defendant seeks the work product in a later civil case. [44.305]

44.4 OVERCOMING PROTECTION FOR STATEMENTS

Specific rules normally require litigants to provide parties or other persons' earlier statements. ³

44.5 FEDERAL RULE OF EVIDENCE 612

Federal Rule of Evidence 612 sometimes requires witnesses to disclose documents they used while testifying or relied upon to refresh their recollection before testifying. [44.501]

Rule 612 requires such disclosure if the court decides that "justice requires it." [44.502]

In some respects, Rule 612 applies in the same way to work product as to privileged documents. [44.503]

• For example, Rule 612: applies to testimony during a deposition or at trial; does not automatically require disclosure; might require disclosure only if the document refreshed the witness's recollection (which sometimes calls for a review of the witness's testimony); often requires the

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