Using The Work Product Doctrine

• Author: Ashley S. Lipson
• Pages: 738-760

14-736

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

§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

14-737 usinG the wOrk prOduct dOctrine §14.11

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 qualified 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 Pro-

cedure. 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 defen-

dant 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 cen-

turies 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 misunderstood and heavily litigat-

ed. It is a topic that must be mastered by every competent

warrior/litigator. Therefore, in keeping with our basic

campaign strategy, 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 diffi-

culty 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 ter

items, often termed “ordinary business records,” are not