What Is the Work Product Doctrine?
Privilege review is an important and necessary step in preparing for litigation. Privilege review serves to protect documents that are not legally discoverable, either because the client is asserting the attorney-client privilege, or because the documents fall under the protections afforded by the work product doctrine.
Work Product Doctrine VS Attorney-Client Privilege
Although the two types of protected information are often referred to together, the work product doctrine is separate and distinct from the attorney-client privilege. One important distinction between them is that the client is ultimately in control of asserting the attorney-client privilege, whereas the attorney is in control of asserting the work product doctrine.
Attorneys asserting immunity under the work product doctrine should also understand that there are two categories of information the doctrine protects: tangible and intangible work product.
Tangible VS Intangible Work Product
Tangible work product refers to notes, memos, and similar documents that were prepared in anticipation of litigation by or for a party to the litigation (or by someone else on behalf of a party). In contrast, intangible work product refers to the attorney’s opinions and conclusions prepared in anticipation of litigation.
While the scope of materials protected by the work product doctrine is broader than the attorney-client privilege, the assertion of the work product doctrine can potentially be overcome through a showing of necessity. Tangible documents and records may still be discoverable if the other party demonstrates a substantial need for the documents. If the other party would not be able to obtain the information through other means without undue hardship, work product immunity may not apply.
However, intangible work product (the attorney’s opinions, conclusions, or mental impressions) is only discoverable if the opposing party can show that the attorney’s intangible work product is at issue in the case at hand. There must also be a compelling need for discovery of intangible work product.
When conducting privilege review activities, observing the various distinctions noted above can help ensure that immunity from discovery under the work product doctrine is asserted when appropriate.
Baer Reed offers a full range of legal support services, including privilege review and privilege log drafting, to law firms and corporate legal departments. To learn more, contact us online or call (888) 433-1990.
- On July 5, 2017
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