Is Attorney Work-Product Discoverable? Maybe

• Pages: 18-19
• Date: 01 July 2021
• Author: Hon. Karen L. Stevenson
• Subject Matter: Civil Law

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 46, Number 4, Summer 20 21. © 2021 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

hen resolving dis covery motions, I some-

times must exa mine a part y’s privilege log

to determine whet her documents have been

properly withheld from di scovery based on

the attorney-cl ient privilege or attor ney work-

product doctri ne. The contours of the attorney-client priv i-

lege are generally well u nderstood, but the work-product

analysis can b e more nuanced. Whe n preparing privi lege log

entries, lawyer s sometimes do not ack nowledge—whet her

deliberately or unwitt ingly—important lim itations on the

protections affo rded by the work-product doctri ne. In diver-

sity cases, wh ile the applicable state law govern s privilege

issues, federal l aw governs the work-product analysis.

Attorney Work-Product Do ctrine— Not a Privilege

A common misconce ption is that the work-product doc trine

is a privilege. It is not. U nlike the attor ney-client privilege,

which provides almos t absolute protection agai nst disclosure

of communications b etween a client and his or her attor-

ney, the work-product doctrine is a qua lied immunity that

protects from dis covery documents prepared by a part y or

its counsel in ant icipation of litigation that reve al a lawyer’s

opinions and menta l impressions. The pr imary purpose of

the work-product doctrin e is to prevent a party f rom exploit-

ing the opposing pa rty’s litigation prepa ration.

Facts are never shielded f rom discovery. But the work-

product doctri ne may protect a lawyer’s analysis, strategy,

and opinions about those f acts. To qualify for work-product

protection, two re quirements must be s atised: (1) the mate-

rial must be prepare d in anticipation of litigation or for

trial; and (2) it must be prepa red by or for another party or

by or for the party ’s counsel. The protec tion, however, is

not absolute.

Courts May Orde r Discovery of Work Produc t—

Within Limits

Federal Rule of Civil P rocedure 26(b)(1) permits discovery

“regarding any nonprivil eged matter that is rel evant to any

party’s claim or d efense and proportion al to the needs of

the case.” Notably, Rule 26(b)(3) addresses trial prepa ra-

tion materials and prov ides, “Ordinar ily, a party may not

discover document s and tangible things that are prepa red

in anticipation of litigat ion or for trial by another party,

or its representative (includi ng the other part y’s attor-

ney, consultant, suret y, indemnitor, insur er, or agent).”

Notwithst anding these p rovisions, a court m ay, under Rule

26(b)(3)(A), permit discovery of documents prep ared in

anticipation of litigation or t rial if the material is “otherwis e

discoverable under Rule 26(b)(1)” and the party se eking

discovery “shows that it has sub stantial need for the materi-

als to prepare its case a nd cannot, without undue hardship,

obtain their sub stantial equiva lent by other means.”

To persuade the court to order dis covery of an opposing

party’s litigation pr ep or trial-related m aterial, the demand-

ing party shou ld present afdavits that show the import ance

of the material that c oncrete, not just theore tical, hardship

will occu r if it is not disclosed; and that demonst rate efforts

to obtain the in formation by other mea ns.

Is Attorney Work-Product

Discoverable? Maybe

By Hon. Karen L . Stevenson, Litigation Ne ws Associate Editor

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