Practice notes: the work-product doctrine.

• Author: Cullinan, Thomas A.

Surprise Quiz: The Internal Revenue Service just issued a notice expressing its intent to challenge a type of transaction that your employer engaged in. You immediately schedule a meeting with your supervisor, preparing notes about the merits of the transaction and how the company should react to the IRS notice. Later you convert your notes into a formal memorandum that you use when reviewing the company's reserve determination and you give a copy of the memorandum to your outside auditor. The IRS subsequently issues an Information Document Request (IDR) seeking all "notes or memoranda that relate to or describe" the transaction.

* Do you have to produce the notes and memorandum?

* Does the answer differ if you are a lawyer?

Answers: (1) There is a strong argument that you do not need to produce the notes. You may not have to produce the memorandum, but the answer may depend on the circuit court to which the issue would be appealed if it were litigated. (2) The answer should be the same whether or not you are a lawyer.

The notes and memorandum are almost certainly not covered by the attorney-client privilege. Even assuming that you are an attorney, that privilege is often defined to protect only confidential communications between the attorney and the client, and the IRS might not agree that an attorney's notes are a "communication" that may be covered by that privilege. In any event, even assuming that the notes would be covered by the attorney-client privilege, the privilege was likely waived when you gave the memorandum to the auditor. Further, a waiver of the attorney-client privilege ordinarily extends to all documents of the same "subject matter" and, in this example, would likely include the notes that formed the basis for the memorandum.

Fortunately, that does not end the analysis because the notes and memorandum may be protected "work product." The work-product doctrine is more inclusive than the attorney-client privilege in that it protects a broader variety of materials than communications between the attorney and the client. There are two different definitions of work product: (1) the common law rule and (2) the definition in the Federal Rules of Civil Procedure. In most cases, a document only needs to satisfy one or the other to be protected.

The common law rule recognizes that a lawyer's work may be reflected "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly termed ... , as the 'Work product of the lawyer.'" (1) Federal Rule of Civil Procedure 26(b)(3) ordinarily protects "documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its...