Chapter 53 Source and Choice of Work Product Law

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

Chapter 53

SOURCE AND CHOICE OF WORK PRODUCT LAW

53.1 INTRODUCTION

Courts analyzing litigants' work product protection claims would seem to have an easy task, but disagree about many issues.

53.2 ADDRESSING ONLY ONE TYPE OF PROTECTION

As discussed in Chapter 52, some courts inexplicably fail to address work product claims if they find the attorney-client privilege applicable—or vice versa.

53.3 SOURCE OF WORK PRODUCT LAW—STATE COURTS

State courts rely on their own work product rules, some of which vary from the federal rules. [53.301]

Most states articulate their work product principles in statute or court rule, but some recognize common law principles. [53.302]

Some states' work product rules or other principles vary from familiar federal work product rules.

• Examples include: Connecticut limits the scope of the work product doctrine to a lawyer's work product; New York state courts provides absolute protection to what is called "attorney work product," which differs from the lower level of protection provided to what is called "trial preparation" material; Washington state rules applicable in criminal proceedings protect only opinion work product; California provides work product protection to materials created by lawyers, even if the client does not anticipate litigation; Illinois's work product rule only protects what federal courts define as "opinion" work product; Pennsylvania does not require an adversary to prove substantial need before obtaining a litigant's work product and

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also differentiates between work product prepared by a lawyer and by another client's representative.

Some state courts look to federal case law in applying their own state work product rules. [53.303]

VA Virginia circuit courts ¹ indicated that Virginia courts may look to federal law in analyzing privilege issues.

53.4 SOURCE OF WORK PRODUCT LAW—FEDERAL COURTS

Federal courts apply federal work product rules, but sometimes deal with nuances. [53.401]

The United States Supreme Court's 1947 Hickman decision ² recognized common law work product principles, which preceded the federal rule. [53.402]

• Some federal courts rely on this parallel federal common law in extending work product protection to intangible work product, among other things.

• Federal courts hearing federal question cases look at federal work product rules and presumably this federal common law, while federal courts sitting in diversity presumably apply the rules alone.

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