Using The Work Product Doctrine

• Author: Ashley S. Lipson
• Pages: 893-918

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

1Dowden 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.

2Refer 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).

3Granite 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.

4The 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-