Vol. 29, No. 2 #3 (April 2006). ETHICALLY SPEAKING The Work Product Doctrine(fn1).

• Author: By John M. Burman

Wyoming Bar Journal

2006.

Vol. 29, No. 2 #3 (April 2006).

ETHICALLY SPEAKING The Work Product Doctrine(fn1)

WYOMING LAWYERApril 2006/Vol. 29, No. 2ETHICALLY SPEAKING The Work Product Doctrine(fn1)By John M. Burman

The discussion about the attorney-client privilege which appeared in the last two issues of the WYOMING LAWYER ended with the observation that: '[m]uch of attorneys' work does not involve communications with clients. It is not, therefore, protected by the attorney-client privilege. Rather, it falls under the work product doctrine. That doctrine will be the subject of the next column."(fn2) As promised, here is that column. Background

When the Rules of Civil Procedure were amended to permit far-ranging discovery, a problem arose. While communications between a client and the client's lawyer were protected from discovery by the attorney-client privilege, a lawyer's mental impressions, conclusions, opinions, and legal theories were not. The issue was whether some other privilege protected them.

The issue came to the fore in the case of Hickman v. Taylor,(fn3) in which one party attempted to discover the notes of the attorney for the other party. The case ultimately went to the United States Supreme Court, where the issue was "whether any of those [discovery] devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation."(fn4)

The Supreme Court agreed that "the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis."(fn5) That did not end the inquiry, however, as the Court was clearly concerned that the disputed discovery was "an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney . . . without any showing of necessity or any indication or claim that denial of such production would unduly prejudice" the requesting party.(fn6) Such an attempt, said the Court, "falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims."(fn7) Accordingly, the Court denied the requested discovery, holding that "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel."(fn8) The holding was limited to what the Court referred to as the "work product of the lawyer," which was described as "interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . ."9

The work product doctrine is now part of the Rules of Civil Procedure (Rule 26(b)(3)) and the Rules of Criminal Procedure (Rule 1 6(a)(2) and (b)(2)). It protects from discovery those documents and tangible things prepared in anticipation of litigation by another party or another party's representative unless the party seeking discovery can show a substantial need for the materials and the inability to reproduce the material without undue hardship.(fn10)

The purpose of the doctrine was first announced in Hickman v. Taylor, and it remains the same. To ensure the integrity of the adversarial system by recognizing "that it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel."(fn11)

The Work Product Doctrine vs. The Attorney-Client Privilege

The work product doctrine is distinct from the attorney-client privilege in two important ways. First, the work product doctrine and the attorney-client privilege protect different aspects of an attorney's work. The former protects the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party . . ."(fn12) The latter protects communications between a lawyer and the lawyer's client.(fn13) Second, some courts have held that the work product privilege is that of the attorney, not of the client, because it is the attorney's privacy being protected.(fn14) Others have held that the privilege "was created for the protection of the client as well as the attorney," and belongs, therefore, to both.(fn15) The attorney-client privilege, by contrast, belongs to the client, not the attorney. (fn16)

The question of to whom the work product privilege belongs is important only to the extent that it affects who may waive it. If the privilege is the lawyer's, the lawyer, at least arguably, has the authority to waive it. If it is the client's, either jointly or solely, waiver must include the client.

The better view is that the work product doctrine was created and is now codified in the rules to protect both lawyers and clients. While it is certainly true that it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel,(fn17) that is true because lawyers cannot represent their clients competently without that privacy. Since the client's interests lie at the forefront of everything lawyers do, their interests should always take priority. For that reason, the work product doctrine is not simply the lawyer's. It belongs to both the lawyer and the client. Accordingly, a lawyer acting alone should not be able to waive it. That should be done only after the client makes an informed decision to join in the waiver.(fn18)

The Scope of the Work Product Doctrine

"The work product doctrine provides qualified protection from disclosure for documents and other tangible things 'prepared in anticipation of litigation or for trial.'"(fn19) Unless the doctrine is "overcome, it bars discovery 'where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation.'"(fn20) The contours of the doctrine's "qualified privilege" depend on both the type of information sought and who prepared it. The answers to those questions generally dictate

whether the information is discoverable. As the following discussion shows, answering that question is often not easy.

Rule 26 of the Wyoming Rules of Civil Procedure (and Rule 26 of the Federal Rules) classifies work product information in two ways. First, that which is discoverable, and that which is not. Second, the rule distinguishes between the work product of attorneys and that of experts.

The threshold question for assertion of the work product doctrine, regardless of the type of information sought or who prepared it, is whether the material was "prepared in anticipation of litigation,"(fn21) or, in the words of the rule, whether the information sought involves "trial preparation materials."(fn22) If so, it falls under the work product doctrine. If not, it does not, and is discoverable unless otherwise privileged, so long as it is either relevant or is "reasonably calculated" to lead to admissible evidence.(fn23)

Non-Discoverable vs. Discoverable Materials

The work product doctrine provides absolute protection to some materials, making them non-discoverable under any circumstances.(fn24) That absolute protection is contained in Rule 26 but is difficult to find.

Rule 26(b)(3) is entitled "Trial Preparation: Materials." It begins by setting forth the conditions under which some such materials are discoverable. In the midst of discussing how and when to permit discovery, the rule creates an exception to discovery. That exception is contained in a...