What is the Work Product Doctrine?

M. Lupica

The attorney work product doctrine is a concept within civil procedure that protects any attorney’s work product from discovery by the other litigant. Work product is defined as any tangible materials or their intangible equivalent prepared by an attorney in the anticipation and preparation for litigation. The work product doctrine is limited, and work product may be discoverable, if the other litigant demonstrates that the facts are necessary to substantiate the claim and they have no other means of obtaining such information without suffering undue hardship.

Work product is the total amount of materials prepared by an attorney in the preparation for litigation.
Work product is the total amount of materials prepared by an attorney in the preparation for litigation.

There are many things that fall under the scope of the attorney work product doctrine. They could be inter-office memoranda, briefs, written notes by an attorney regarding the case, and even voice-recorded notes made in preparation of the case. The protection under the work product doctrine also extends to paralegals, secretaries, and other non-attorney parties who are acting within the control of the attorney handling the case. As long as the information was recorded with the reasonable intent of preparing for the litigation, it applies.

There is also the question as to what “in anticipation and preparation for litigation” actually means. In the context of the attorney work product doctrine, the phrase typically refers to any point at which there is a reasonable expectation of a claim to be filed. This is entirely context dependent and will vary from situation to situation. In a personal injury case, for instance, it could attach at the exact moment that the injury occurs.

There are also limitations to the attorney work product doctrine. If the information is necessary for the preparation of the other litigant’s case and they are unable to obtain the substantial equivalent of the protected material through other means, the work product doctrine may not apply. In the event a witness becomes unavailable for any reason, the other litigant may move to waive the protection and admit any notes the attorney recorded during interviews with the witness.

The policy behind the attorney work product doctrine is simple. If attorneys had to consider that the notes they take in preparing for litigation could eventually hurt their client at trial, then their ability to prepare would be hampered. The policy is in the interest of ensuring that litigants receive the most competent and prepared counsel possible.

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