Work-product doctrine

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In American civil procedure, the work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel. [1] It is also known as the work-product rule, the work-product immunity, the work-product exception, and the work-product privilege, though there is debate about whether it is truly a "privilege." [2] This doctrine does not apply in other countries, where such communications are not protected, but where the legal discovery process itself is much more limited. [3]

Contents

Doctrine

Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable. [4] [5]

Comparison with attorney–client privilege

The work-product doctrine is more inclusive than attorney–client privilege. Unlike the attorney–client privilege, which includes only communications between an attorney and the client, work product includes materials prepared by persons other than the attorney themselves: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case.

Despite its inclusiveness, the work-product doctrine is less powerful than the attorney-client privilege, and therefore may be overcome by a showing of necessity. An example of a possible exception would be a witness being unavailable due to death or living in a remote/hostile nation.

Even if an exception to the work-product doctrine is made, the court would still protect privileged actions by an attorney, by redacting the privileged part of the document. "Memoranda, briefs, communications ... other writings prepared by counsel for his/her own use in prosecuting the client's case ... mental impressions, conclusions, opinions, or legal theories" are never discoverable by an opposing party.

Assertion of the doctrine by pro se parties

There is considerable debate within the American federal judiciary system whether or not the protections afforded by the work-product doctrine may be asserted by a litigant who is not represented by an attorney or a litigant representing in pro se. No United States appellate court has yet decided the issue but multiple federal district courts and some state courts have held or assumed that unrepresented litigants do enjoy the protections of the doctrine. [6]

History

The work-product doctrine originated in the 1947 case of Hickman v. Taylor , in which the Supreme Court affirmed a United States Court of Appeals for the Third Circuit decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney. [5] The Supreme Court, acting at the recommendation of the Advisory Committee of the Judicial Conference, later enshrined this doctrine formally in the Federal Rules of Civil Procedure as Rule 26(b)(3). [7]

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Michael R. Murphy is a Senior United States circuit judge of the United States Court of Appeals for the Tenth Circuit.

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A privilege log is a document that describes documents or other items withheld from production in a civil lawsuit under a claim that the documents are "privileged" from disclosure due to the attorney–client privilege, work product doctrine, joint defense doctrine, or some other privilege. Rule 26(b)(5)(A) of the Federal Rules of Civil Procedure requires that a party who withholds information on grounds of privilege must (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed—and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. A party withholding privileged documents from discovery complies with Rule 26(b)(5)(A) by producing a log containing the following information for each withheld document: the date, type of document, author(s), recipient(s), general subject-matter of the document, and the privilege being claimed. A production log or similar document may explain where documents on the privilege log were found, identify lawyers on the log, or provide other information.

The joint defense privilege, or common-interest rule, is an extension of attorney–client privilege. Under “common interest” or “joint defense” doctrine, parties with shared interest in actual or potential litigation against a common adversary may share privileged information without waiving their right to assert attorney–client privilege. Because the joint defense, "privilege sometimes may apply outside the context of actual litigation, what the parties call a ‘joint defense’ privilege is more aptly termed the ‘common interest’ rule.”

References

  1. ↑ Bryan A. Garner, ed. (2000). "Work-product rule". Black's Law Dictionary (Abridged 7th ed.). St. Paul, Minn.: West Group. p. 1298.
  2. ↑ E.g., United States Fish and Wildlife Service v. Sierra Club, Inc., 141 S.Ct. 777 (2021) (government privileges in civil litigation include "deliberative process privilege, attorney-client privilege, and attorney work-product privilege").
  3. ↑ Craig D. Bell, Thomas E. Spahn, Christopher S. Rizek, "A Guide to the Attorney-Client Privilege and Work Product Doctrine for Tax Practitioners" (2007), p. 11.
  4. ↑ "Work product". Black's Law Dictionary. p. 1298.
  5. 1 2 Hickman v. Taylor .
  6. ↑ Gundlach, Jennifer; Smith, Zeus (Fall 2022). "Expanding the Federal Work Product Doctrine to Unrepresented Litigants" (PDF). Georgetown Journal on Poverty Law and Policy. XXX (Fall 2022): 63–70.
  7. ↑ "Certain of the Amendments of Federal Rules of Civil Procedure Adopted by the Supreme Court of the United States on March 30, 1970, Effective July 1, 1970, With Advisory Committee's Notes Thereon." Reprinted in Kevin M. Clermont, ed. (2006). Federal Rules of Civil Procedure, and Selected Other Procedural Provisions. New York: Foundation Press.
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