Using The Work Product Doctrine

AuthorAshley S. Lipson
Pages893-918
The Work Product Doctrine was designed to
prevent one attorney from gaining information
by the sweat of another attorney’s brow.
Chapter 14
Using the Work Product
Doctrine
Table of Contents
§14.10 Basic Training
§14.11 Definition and Description
§14.12 Brief History
§14.13 Distinguishing Attorney-Client Privilege
§14.20 The Basic Rules That You Need
§14.21 Federal Rule of Civil Procedure 26(b)
§14.22 The States’ Rules
§14.30 Concise Answer Chart
§14.31 Raw Facts, Legal Claims and Real Evidence
§14.32 Expert Witness Opinions
§14.33 Ordinary Work Product
§14.34 Expert Advisory Assistance
§14.35 Opinion Work Product
§14.36 Unwritten Work Product
§14.40 Weapon-by-Weapon Defense
§14.41 Defense to Requests for Admissions
§14.42 Defense to Interrogatories
§14.43 Defense to Notices for Production
§14.44 Defense to Demands for Inspection
§14.45 Defense to Demands for Examinations
§14.46 Defense to Depositions
§14.50 Waivers
§14.60 Counteroffensives
§14.10 Guerrilla Discovery 14-2
1 Dowden v. Superior Court, 86 Cal. Rptr.2d 180, 73 Cal.App.4th 126 (Cal. App. 1999), says it best by holding that the Work
Product Doctrine limits discovery so that the “stupid” or “lazy” practitioner may not take undue advantage of his adversary’s
efforts.
In re Syncor ERISA Litigation, 229 F.R.D. 636 (D.C.Cal., 2005). One of the primary purposes of the work product doctrine is to
prevent one party from exploiting the other party’s efforts to prepare for litigation. The work product doctrine establishes a qual-
ified immunity, rather than a privilege, and the qualification of the immunity is to be determined upon a showing of necessity or
good cause.
2 Refer to Rule 26(b)(3) of the Federal Rules of Civil Procedure (or see §14.21, infra) and Rule 16(b) of the Federal Rules of
Criminal Procedure. See Weiser v. Grace, 683 N.Y.S.2d 781, 179 Misc.2d 116 (N.Y. 1998), which held that the Work Product
Doctrine protects from discov ery materials specifically written in preparation for threatened or anticipated litigation. See also
Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999); United States v. Lockheed Martin Corp., 995 F.Supp 1460 (M.D. Fla.
1998); Aull v. Cavalcade Pen sion Plan, 185 F.R.D. 618 (D.Colo. 1998); Feshbach v. SEC, 5 F.Supp.2d 774 (N.D. Cal. 1997);
Kelly v. Ford Motor Co., 110 F.3d 954 (3rd Cir. 1997); Messenger v. Ingham County Prosecutor, 591 N.W.2d 393 (1998);
Briggs & Stratton Corp. v. Concrete Sales & Service, 174 F.R.D. 506 (M.D. Ga. 1997); Logan v. Commercial Union Insurance
Co., 96 F.3d 971 (7th Cir. 1996).
3 Granite Partners L.P. v. Bear, Stearns & Co., 184 F.R.D. 49 (S.D.N.Y. 1999). United States v. Ernstoff, 183 F.R.D.148 ( D.N.J.
1998), broadly stated that the Work Product Doctrine pro vides protection for materials prepared by an attorney, or his or her
agent, in anticipation of litigation, or for use in trial. See also Aull v. Cavalcade Pen sion Plan, 185 F.R.D. 618 (D.Colo. 1998)
and Snyder v. Value Rent-A-Car, 736 So.2d 780 (Fla.App. 1999).
Cooper Health System v. Virtua Health, Inc., 259 F.R.D. 208 (D.N.J. 2009). The plaintiff, a health care system, brought an
action against a local hospital as the result of certain advertisements. The attorney work-product doctrine did not apply to
e-mail messages between the defendant advertising agency for the defendant local hospital and the non-party contractor that
performed research for the ad agency, regarding litigation in a state court before the hospital that had removed the action to
federal court. The e-mails were not authored by, or sent to, an attorney, and the contractor presented no evidence that the ad
agency and the contractor were acting as agents or consultants for the attorneys when they prepared the e-mails. Generally,
the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he or she can
analyze and prepare his or her client’s case. The doctrine not only applies to an attorney’s work product, but also to the work
product of an attorney’s agents and consultants.
4 The term “attorney,” as used in this sentence, includes those agents, investigators and other experts who may act on behalf of
the litigant.
§14.10 Basic Training
Whereas it often took entire wars and sometimes
centuries to develop and solidify many legal subjects,
it only took the sinking of a single tug boat to bring the
law of the work product to a head, and that event took
place in peace-time. In any event, though somewhat
crystallized, the topic still remains hot, widely misun-
derstood and heavily litigated. It is a topic that must be
mastered by every competent warrior/litigator.
Therefore, in keeping with our basic campaign strate-
gy, the subject will be divided into easily handled
elements, simplified and conquered.
§14.11 Definition and Description
The Work Product Doctrine is predicated upon a
simple underlying premise—litigants must be required
to perform their own work and, therefore, should not
be permitted access to the plans, thought processes,
research and investigative efforts of an opposing
party.1 If you are an average warrior, you will use the
Work Product Doctrine to shield your own efforts
from discovery. If you are a superior warrior, you will
use it both as a shield and a weapon.
Throughout history, the Work Product Doctrine
has been described as several things, including: “an
immunity,” “a privilege,” and “a qualified privilege.”
Specifically, it is a rule of law that shields from discov-
ery (and compulsory production at trial), information
and materials prepared by either party in anticipation
of litigation or for use at trial. There seems to be little
difficulty determining precisely which materials and
exhibits have been prepared specifically for use at trial
because of their timing; most of the disputes, therefore,
center around the term “anticipation of litigation.”2
As we will shortly see, the materials subject to
protection are not limited to attorney work-product,
but may also include the labor of other individuals
acting on behalf of a litigant. Agents, investigators,
accountants, photographers, reconstruction specialists
and other experts commonly assist the litigation pro-
cess by providing reports, photographs, summaries
and other materials.3
At the outset, an important distinction must be
drawn between those items prepared in the ordinary
course of the attorney’s4 business and those prepared
in the ordinary course of the client’s business. The lat-

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