The Attorney Work Product Doctrine, 0421 COBJ, Vol. 50, No. 4 Pg. 30

PositionVol. 50, 4 [Page 30]

50 Colo.Law. 30

The Attorney Work Product Doctrine

Vol. 50, No. 4 [Page 30]

Colorado Lawyer

April, 2021


Its History and Application

This article discusses the evolution and scope of the work product doctrine and how it differs from the attorney-client privilege.

The attorney work product doctrine is a relatively recent development in American jurisprudence. While the attorney-client privilege traces its roots to English common law, the work product doctrine was developed in the mid-20th century when courts recognized the need to protect an attorney's mental thoughts and impressions and thus preserve the attorney's trial strategy in anticipated or pending litigation. Together with the attorney-client privilege, the work product doctrine allows counsel and their clients to communicate effectively and shield case strategy from discovery.

This article discusses how the work pro duct doctrine evolved and what information it covers. It also distinguishes work product protections from the attorney-client privilege.

History of the Work Product Doctrine

The work product doctrine was first established in 1947 in the U.S. Supreme Court's landmark case Hickman v. Taylor.1 In Hickman, the Court aimed to balance the "competing interests" of the privacy of a lawyer's work and public policy encouraging reasonable and necessary inquiries.2 Hickman concerned the defense of the owners of a sunken tugboat following the drowning of five of its nine crew members while they were operating the tugboat to assist a car float across the Delaware River. A month after the accident, a public hearing was held before the U.S. Steamboat Inspectors, at which the four survivors were examined. Three weeks later, the survivors were privately interviewed by a lawyer retained in anticipation of litigation against the tugboat owners. While four of the five deceased crew members' estates settled before litigation, the fifth claimant brought a lawsuit eight months after the interviews were conducted.

The issue in Hickman concerned the defense's refusal to answer an interrogatory directed to the tug owners requesting them to " [s]tate whether any statements of the members of the crew of the 'J.M. Taylor' and 'Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug 'John M. Taylor.'"[3] The U.S. District Court for the Eastern District of Pennsylvania held that the requested information was not privileged, but the U.S. Court of Appeals for the Third Circuit reversed, leading to the Supreme Court granting certiorari.4

In a unanimous decision, Justice Murphy wrote that "[p]roper preparation of a client's case demands that [a lawyer] assemble information, sift what he [or she] considers to be the relevant from the irrelevant facts, prepare his [or her] legal theories and plan [a] strategy without undue and needless interference."5 Much of the opinion centered on the Third Circuit's interpretation of Rule 26 of the newly conceived Federal Rules of Civil Procedure. The Court observed that " [n]ot even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney."6 The opinion further noted that interpreting the rules to allow for such materials to be open to opposing counsel on mere demand would develop "[i]nefficiency, unfairness, and sharp practices" in the giving of legal advice and in the preparation of cases.[7] Further,

[w]hen Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries. And we refuse to interpret the rules at this time so as to reach so harsh and unwarranted a result.8

The Court explained that work product would not shield underlying facts from discovery. Instead, the discovery of underlying facts contained within work product could only be had in certain limited circumstances, and the party seeking such discovery must carry the burden to demonstrate production:

Where 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. Such written statements and documents might, under certain circumstances, be admissible in evidence, or give clues as to the existence or location of relevant facts. Or. they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning. But 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 that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.9

From this opinion, the work product doctrine was officially recognized. It was codified into the Federal Rules of Civil Procedure 23 years later with the 1970 amendments.10

In F.T.C. v. Groilier, decided 36 years after Hickman, the work product doctrine was held to extend even after the litigation was over.[11] Justice White, in the majority opinion, was the first to address the "temporal scope" of the work product immunity and held that while the federal rule is silent on the issue, the literal language protecting against discovery for any litigation as long as the documents were prepared for some pending litigation leans toward protection for future litigation as well.12 Justice Brennan, in his concurrence, recognized the advantage presented to opposing parties to be able to obtain work product from previous litigation with government entities or insurance providers that deal with hundreds or thousands of similar cases.13 Justice Brennan sought to avoid "some inhibition" in creating and retaining work product that could later be used by an opponent wholly unrelated to the original litigation that the documents were prepared for; concluding this line of thought, he noted that this "demoralization" is precisely what Hickman warned against.14

As a result of Hickman, Grottier, and their progeny, the work product doctrine is now well-established. While the particulars of what is protected by the work product doctrine can vary by jurisdiction, the basic framework announced by Hickman and later codified in the Federal Rules of Civil Procedure has remained mostly intact.

The Work Product Doctrine in Colorado

The Colorado Supreme Court codified the work product doctrine at CRCP 26(b)(3), effective April 1, 1970.15 This rule allows discovery for information "prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative."[16] The rule qualifies this access by requiring a showing of "substantial need" of the materials requested and that the substantial equivalent of the desired materials is unable to be obtained without "undue hardship." [17] To obtain information from materials otherwise protected as work product, the information sought must "(1) be relevant to the subject matter involved in the pending action [and] (2) not be privileged;" further, "an attorney's work product is not discoverable except upon a showing of substantial need and inability to obtain the information elsewhere."18 Nevertheless, the rule precludes the discovery of "mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."19

Thirty-five years after Hickman, the Colorado Supreme Court addressed the work product doctrine in Hawkins v. District Court.20 Hawkins did not address the work product doctrine as applied to an attorney, but rather to the records of an insurance company adjuster. The Court ruled that the trial court abused its discretion by denying a motion to compel discovery requesting the notes and investigative reports of an insurance adjuster regarding his interviews with several individuals and any statements taken from these persons.21 Justice Quinn distinguished between materials prepared in anticipation of litigation and documents prepared in the "ordinary course of business."22 He explained that the work of claims adjusters is "part of the normal business activity of the company and that reports and witness' statements compiled by or on behalf of the insurer in the course of such investigations are ordinary business records as distinguished from trial preparation materials."[23] The Court held that those denying production have the burden of demonstrating that the document was

[p]repared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained in order to defend the specific claim which already had arisen and, when the documents were prepared or obtained, there was a substantial probability of imminent litigation over the...

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