Rules and parameters of the privilege, examples, and practice tips.
By Joseph A. Ranney
Excerpted from Deposition Objections
- “Anticipation of Litigation”
- Exception to and Waiver of Work-Product Privilege
- Asserting Work-Product Privilege at Deposition
§5:01 Nature and Purpose of Work Product Immunity
Work product immunity and the attorney-client privilege are closely related. “The work-product privilege, while properly construed more narrowly than the attorney-client privilege, nevertheless operates for a similar purpose: that is, that people should be free to make requests of their attorneys without fear, and that their attorneys should be free to conduct research and prepare litigation strategies without fear that these preparations will be subject to review by outside parties.” In re Grand Jury Subpoenas, 454 F.3d 511, 520 (6th Cir. 2006).
The modern rule of work product immunity originated in Hickman v. Taylor, 329 U.S. 495 (1947), which is still routinely cited as the leading case on the subject. In Hickman, the Supreme Court held that:
- Material collected by attorneys in preparation for possible litigation is normally shielded from discovery. That is because attorneys must be free to “assemble information, sift … the relevant from the irrelevant facts, prepare legal theories, and plan a strategy without undue and needless interference.” 329 U.S. at 511.
- The privilege is not absolute: “Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of [the adversary’s] case, discovery may properly be had.” Id. (See §5:02 for more information about this rule.)
§5:02 Rule 26 and the Current Parameters of Work Product Immunity
Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, which has been adopted by many states, describes the current parameters of work product immunity. It states that:
Ordinarily, a party may not discover:  documents and tangible things  that are prepared in anticipation of litigation or for trial  by or for another party or its representative (including the party’s attorney, consultant, surety, indemnitor, insurer or agent). [Numbers added.]
In accordance with Hickman, Rule 26(b)(3)(A) states that work product materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the seeking party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
Exception. Work product immunity may not be asserted against a witness who has given statements to an attorney: she has an absolute right to receive a copy of her statement. Fed. R. Civ. Proc. 26(b)(3)C.
Work product immunity applies only to materials prepared “in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3)(A). Generally, courts hold that materials are prepared “in anticipation of litigation” if the following conditions are met:
- They are “prepared or obtained because of the prospect of litigation,” and
- The attorney and her client “must have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable.” United States v. Roxworthy, 457 F.3d 590, 594 (6th Cir. 2006), quoting In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). See also In re Cendant Corp. Securities Litigation, 343 F.3d 658, 667 (3rd Cir. 2003) (holding that a document preparer’s expectation of confidentiality is relevant to determining whether work product immunity applies).
Material prepared by an attorney for non-litigation purposes – for example, correspondence and memos related to general business transactions – does not enjoy work product immunity. Roxworthy, 457 F.3d at 594.
Immunity is not limited to materials prepared after litigation has commenced. It also applies to materials created in the general course of business to be used in the event of future litigation. The test is whether the materials would have been created “irrespective of [the prospect of] litigation.” If the answer is no, then work product immunity applies. Roxworthy, 457 F.3d at 599.
How can one tell whether a belief in litigation is objectively reasonable? Generally, a belief in litigation is objectively reasonable if: (1) the attorney and client had “a specific claim [in mind] supported by concrete facts which would likely lead to litigation;” or (2) the attorney has “rendered legal advice in order to protect the client from future litigation about a particular transaction.” Roxworthy, 457 F.3d at 599, quoting Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d 854, 865 (D.C. Cir. 1980) and In re Sealed Case, supra, 146 F.3d at 885.
The following situations illustrate when you should and should not object to deposition questions that call for information arguably compiled in anticipation of litigation:
Example: Joan Arcuri was injured in an auto accident when the brakes on a Tyrannosaurus Motor Co. “Guzzler” SUV in which she was a passenger failed. She has filed a products liability lawsuit against Tyrannosaurus Motor Co.
|Situation||Should you object?|
|You are Joan’s lawyer. You have examined the Guzzler SUV’s brakes and have collected information about Tyrannosaurus’s manufacturing practices in order to see whether Joan has a viable lawsuit. Tyrannosaurus’s lawyer asks Joan for that information.||Yes. This is “ordinary work product” and it is not discoverable unless Tyrannosaurus shows genuine need for the information and inability to obtain it elsewhere.|
|You are Tyrannosaurus’s lawyer. After Joan’s lawyer notified the company of the accident and of a potential claim, you asked a Tyrannosaurus representative to investigate the accident and prepare a report for the company president. Joan’s lawyer asks the representative what information the report contains.||Yes. This is ordinary work product.|
|You are Tyrannosaurus’s lawyer. Before Tyrannosaurus was aware of the accident, you prepared a memorandum on product safety law for company management to use in developing company brake design policy. Joan’s lawyer asks the company representative (who is familiar with the memo) what information it contains.||This is a close call. If you prepared the memo in order to reduce the chances of future litigation, then you should object. If the memo was prepared merely in order to develop general business policy, then it is probably discoverable and the company representative should answer the question.|
§5:04 Joint Work Product
Parties who have separate counsel but conduct a joint prosecution or defense effort may freely share documents prepared by their respective attorneys without waiving work product immunity. See, e.g., Castle v. Sangamo Weston, Inc., 744 F.2d 1464, 1466-67 (11th Cir. 1984) (holding in an age discrimination case that the plaintiff employee and the Equal Employment Opportunities Commission did not waive work product immunity by sharing litigation materials). Likewise, the fact that one party to a joint litigation effort has disclosed work product to an adversary does not mean that other parties to the joint effort have waived work product immunity. In such situations, work product materials may not be admitted in evidence at trial unless all parties have waived the privilege. John Morrell & Co. v. Local 304A, United Food & Commercial Workers, 913 F.2d 544, 566 (8th Cir. 1990),cert. denied. 500 U.S. 905 (1991).
Work product immunity also extends to documents prepared for separate entities that have common business interests, even if they are not part of a joint prosecution or defense effort. See, e.g., In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 221 n.6 (S.D.N.Y. 2001) (stating: “Disclosure of work product to a party sharing common interests is not inconsistent with the policy of privacy protection underlying the doctrine”); Blanchard v. Edgemark Financial Corp., 192 F.R.D. 233, 237 (N.D. Ill. 2000).
If you wish to share work product with another entity outside of a joint prosecution or defense, it is best to have the other entity sign a confidentiality agreement.
Likewise, even in a joint prosecution or defense it is best to confirm the scope of the joint effort in writing and mark shared documents as confidential.
FORM: For an example of a letter confirming a joint defense agreement, see Form 5-1 at the end of this chapter and on the CD.
There is a crime-fraud exception to work product immunity. Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 769 (7th Cir. 2006); In re Grand Jury Proceedings No. 5, 401 F.3d 247, 252-53 (4th Cir. 2005). The crime-fraud exception applies when there is evidence that the client was engaged in or planning a criminal or fraudulent scheme at the time the work product was prepared. Grand Jury Proceedings No. 5, 401 F.3d at 252. The party seeking the work product must also show that the work product is related to the crime or fraud. IId.
Courts are divided as to whether the attorney must have known of the fraud or crime in order for the exception to apply. Some courts have held that because the attorney and client have separate rights to assert work product immunity, attorney knowledge of the crime or fraud must be shown before immunity will be withheld. See, e.g., In re Grand Jury Proceedings, 33 F.3d 342, 349 (4th Cir. 1994) (holding that where attorney did not know of crime or fraud, at a minimum immunity still applies to attorney’s opinion work product); compare Grand Jury Proceedings No. 5,, 401 F.3d at 252 (attorney’s knowledge not required for application of crime-fraud exception).
Even if work product is disclosed, that does not always mean that work product immunity is waived. See, e.g., United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1299-1300 (D.C. Cir. 1980) (stating that work product may be disclosed to a party with “common interests” if that party promises to keep the work product confidential). One commentator has explained that “[s]elective and strategic disclosure is entirely consistent with the work-product doctrine, however, because [the doctrine] is concerned with implementing the adversary process, not just encouraging confidential communications.” 2 E.S. Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 1031 (5th ed. 2007).
In most cases, inadvertent disclosure of work product will not be deemed a waiver of immunity. Fed. R. Civ. P. 26(b)(5)(B) explicitly provides that:
If information produced in discovery is subject to a claim of privilege or of protection as trial preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.
But negligent disclosure of a work-product document or other work-product information generally does constitute waiver. See, e.g., Securities & Exchange Comm. v. Cassano, 189 F.R.D. 83, 85 (S.D.N.Y. 1999) (indicating that inadvertent inclusion of a work-product document in a large document production without more was not waiver, but that the producing attorney’s consent to production of the document without reading it constituted waiver). Likewise, undue delay in requesting return of a work-product document may constitute a waiver of immunity. In re Hechinger Inv. Co. of Delaware, Inc., 303 B.R. 18, 25 (D. Del. 2003).
Consider asking the court for a protective order that contains a “claw-back” provision extending to work-product documents as well as confidential documents.
Claw-back provisions are common for confidential documents (see Chapter 1, Form 1-7), and there is no reason that such provisions cannot be extended to work product documents, attorney-client communications, and documents that are privileged for other reasons.
Attorney work product is discoverable if the nature and quality of an attorney’s work is an issue in the lawsuit at hand. Examples include cases where the defendant relies on the advice of counsel as a defense to liability for willful wrongdoing, and cases involving disputes between a lawyer and client such as fee disputes and legal malpractice claims.
Advice-of-counsel defense. Defendants who are alleged to have engaged in intentional illegal conduct, and are thus exposed to enhanced damages and liability for the other party’s attorney fees, sometimes attempt to avoid liability by claiming that they relied on the advice of their counsel who told them their behavior was legal. By making such claims, they put the nature and quality of their attorney’s work directly at issue, and any work product immunity is deemed waived.
For example, if a patent owner claims that the defendant intentionally infringed her patent and the defendant claims it received an opinion from counsel that the patent was invalid, the patent owner is entitled to see the opinion at issue, to question the attorney about how carefully she reviewed the matter before giving her opinion, and to question both defendant and attorney as to exactly what advice was given to the defendant. Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 931 (N.D. Cal. 1976). See also In re Seagate Technology, LLC, 497 F.3d 1360, 1376 (Fed. Cir. 2007) (where a patent holder retains separate counsel to give an opinion on a patent’s validity and another to defend the patent in litigation, “relying on opinion counsel’s work product does not waive work product immunity with respect to trial counsel”) and Coleco Industries, Inc. v. Universal City Studios, 110 F.R.D. 688, 690-91 (S.D.N.Y. 1986) (holding that work product immunity did not apply to attorney’s papers where the client argued, in response to a charge that it had fraudulently asserted ownership of materials, that it had relied on the attorneys’ advice).
Disputes between attorney and client. In cases where a client has sued her lawyer for malpractice, the client puts the nature and quality of the lawyer’s work directly at issue; thus, she is entitled to disclosure of all of the lawyer’s work product, and, conversely, the lawyer is entitled to present his work product as part of his defense. See, e.g., Spivey v. Zant, 683 F.2d 881, 885 (5th Cir. 1982), cert. denied, 469 U.S. 1132 (1985) (holding that work product immunity does not apply when the client seeks work product generated during the course of the attorney’s representation); Roberts v. Heim, 123 F.R.D. 614, 631-33 (N.D. Cal. 1988) (same). Likewise, in a fee dispute case the client is entitled to disclosure of all work product to determine the strength of her position that the lawyer did not earn his fee, and the lawyer is entitled to disclose his work product in order to show that he earned his claimed fee.
- Question: Deposing counsel asks a question calling for attorney work product. The client wants to disclose the work product because she believes it will help her case. You do not wish to disclose it. What do you do?
A client may invoke immunity as to her attorney’s work product. See, e.g., In re Grand Jury Proceedings, 604 F.2d 798, 801 (3rd Cir. 1979). But the courts are divided as to whether an attorney may invoke immunity if the client wishes to disclose work product.
Some courts have concluded that attorneys have an interest in their work product distinct from that of the client, therefore they may independently shield such work product. In re Grand Jury Proceedings, 604 F.2d at 801 n. 4 (3rd Cir. 1979) (suggesting that to the extent disclosure of work product such as a lawyer’s private opinion of a client may impair the attorney-client relationship, the lawyer has an independent right to protect the work product); In re Grand Jury Subpoena (Zerendow), 925 F.Supp. 849, 853 (D. Mass. 1995); Catino v. Travelers Ins. Co., 136 F.R.D. 534, 539 (D. Mass. 1991) (holding that lawyer’s right to shield work product extends only to opinion work product, not fact work product).
If your witness wants to waive work product immunity and you do not, consider the ethical implications before you invoke immunity on your own behalf.
One of a lawyer’s most basic obligations is to act in the best interest of her client. See American Bar Ass’n, Model Rules of Professional Conduct (2004), §1.2 (stating: “[A] lawyer shall abide by a client’s decisions concerning the objectives of the representation”). Thus, if you object to a disclosure of work product that the client wants made, you risk being accused of breaching this duty. In case of a conflict, consider asking for time to obtain ethics advice as to whether to object.
- Objection. The questions calls for disclosure of thoughts and analysis of counsel and is absolutely privileged.
There are different levels of protection for “opinion” and “ordinary” work product. The protection for “opinion” work product consisting of an attorney’s thoughts and legal analysis is nearly absolute. See, e.g., Upjohn Co. v. United States, 449 U.S. 383, 400-02 (1981) (stating that at a minimum, a heightened showing of need is required for disclosure); Cendant Corp., supra, 343 F.3d at 664 (protection is “near absolute” and “a heightened showing of extraordinary circumstances” is required for disclosure). This rule is embodied in Fed. R. Civ. Proc. 26(b)(3)(B):
If the court orders discovery of those materials [work product], it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
Examples of “opinion” work product include: (1) letters and memoranda in which the attorney analyzes the case or legal issues in the case; (2) draft briefs and other documents in which the attorney applies applicable law to the facts of the case; (3) legal research notes; and (4) worksheets showing damages calculations and other calculations.
- Objection. You are asking for information that is attorney work product. You have not shown that you have substantial need of the information and that you are unable to obtain substantially equivalent information without undue hardship.
“Ordinary” work product – that is, facts collected by an attorney that are unaccompanied by legal analysis – receives less protection. Cendant, supra, 343 F.3d at 663. If the requesting party shows “substantial need” for such information and shows that it “cannot, without undue hardship, obtain their substantial equivalent by other means,” then “ordinary” work product must be produced. Fed. R. Civ. P. 26(c)(3).
Examples of “ordinary” work product include: (1) transcripts of witness interviews; (2) reports of non-testifying experts; (3) financial records collected from the client and other sources; (4) accident reports and other records collected from official sources; and (5) photographs of locations and things relevant to the case.
Courts generally require a party seeking “ordinary” work product to show that it truly needs the work product and is unable to obtain through other means the facts contained in the work product. It is not enough for the seeking party to show that the facts would be useful: it must show that the facts are essential to its case. See, e.g., Fletcher v. Union Pacific R. Co., 194 F.R.D. 666, 671 (S.D. Cal. 2000) (stating that facts must be “essential elements of the requesting party’s prima facie case” and not merely corroborating evidence).
Likewise, the seeking party must do more than show that it would be difficult to obtain the facts through other means. Impossibility or something close must be shown. See, e.g., In re Ashworth, Inc. Securities Litigation, 213 F.R.D. 385, 389-90 (S.D. Cal. 2002) (holding that plaintiff did not have to disclose the names of defendant’s employees who had provided information supporting plaintiff’s claims; court noted that plaintiff had disclosed the names of employees who were likely to have relevant information and concluded that having to interview the approximately 100 employees at issue would not be unduly burdensome for defendant).
Examples of situations in which courts have found “substantial need” for ordinary work product include the following:
- Deceased witnesses. Requests for transcripts of witness interviews where the witness is deceased. See, e.g., In re Grand Jury Investigation, 599 F.2d 1224, 1231-32 (3rd Cir. 1979).
- Witnesses with impaired memory. Requests for transcripts of interviews of witnesses whose memory has become impaired since the interviews were given. See, e.g., State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 238-39 (W.D. Va. 1984) (impaired memory due to brain damage); McDougall v. Dunn, 468 F.2d 468, 474 (4th Cir. 1972) (amnesia).
- Lapse of time. Requests for interview transcripts where the court believes the lapse of time since the statement was taken is such that the witness’s memory is likely to have faded.
Some courts are substantially more liberal than others about granting such requests. Compare United States v. Murphy Cook & Co., 52 F.R.D. 363, 364 (E.D. Pa. 1971) (request for transcript granted) with Fidelity & Deposit Co. v. S. Stefan Strauss, Inc., 52 F.R.D. 536, 537 (E.D. Pa. 1971) (request denied; court noted that plaintiff had not made a timely attempt to depose the witness and had not presented evidence that it could not obtain the requested information through a deposition).
- Objection. Your question requires the witness to disclose information that is embedded in attorney work product. The witness cannot disclose the information you are asking for without disclosing work product. I suggest we discuss other ways in which you can obtain the information you are seeking.
The facts contained in your work product are not shielded from discovery. A party “may choose in what form it produces relevant factual information [b]ut … cannot withhold relevant information on the basis of attorney work product.” Koch Materials Co. v. Shore Slurry Seal, Inc., 208 F.R.D. 109, 121 (D.N.J. 2002); see also Casson Const. Co. v. Armco Steel Corp., 91 F.R.D. 376, 384-85 (D. Kan. 1980). However, this rule is limited to objective facts. The witness need not disclose opinions or testimony that you have collected, but she must identify lay witnesses providing such opinions and testimony and you must disclose the names of any expert witnesses that you intend to call at trial, together with reports setting forth their opinions. See Fed. R. Civ. P. 26(a)(2).
If at a deposition your opponent asks your client to produce documents created by you that contain relevant facts, you may object based on work product immunity. But if the attorney asks the witness to disclose relevant facts and there is a way to do so without disclosing your thoughts and impressions, you must allow the witness to make such disclosure.
Example: In the Joan Arcuri case described above, you represent Joan. You locate a witness to the accident who tells you that he saw the driver, Mary Kinzie, drinking heavily in a bar shortly before she picked up Joan. You have told Joan privately about this and have advised her that although you do not intend to call the witness, if Tyrannosaurus’s lawyer learns of the witness’s testimony that will hurt Joan’s case. Whether Joan has to disclose this information depends on what questions are asked:
|Question||Does Joan have to answer?|
|Do you know if anyone saw what Mary Kinzie was doing before the accident? Who?||Yes – names of witnesses with relevant information must be disclosed.|
|What did the witness see Mary do?||No – object based on work product. This is analogous to a request for a witness statement, which is ordinary work product. But if the showing of need for work product required by Fed. R. Civ. P. 26(a)(3) or an equivalent local rule is made, Joan must provide the requested information.|
|Did your lawyer take a written statement from the witness?||Yes.|
|Please give me a copy of the written statement.||Object based on attorney work product. But again, if the showing required for production of ordinary work product is made, the statement must be produced.|
- Objection. The question calls for information that was prepared by one of my assistants as part of our work in this case.
Fed. R. Civ. P. 26(b)(3) extends work product immunity to work done by a broad variety of persons assisting with a case, including “consultant[s], suret[ies], indemnitor[s], insurer[s and] agent[s].” There are no clear standards for determining who is an assistant. See, e.g., United States v. Nobles, 422 U.S.225, 238-39 (1975) (noting that the work product doctrine “is an intensely practical one, grounded in the realities of litigation”). Examples of assistants to whom immunity has been extended include the following:
- Investigators. See, e.g., Nobles, 422 U.S. at 238-39.
- Consultants. See, e.g., Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252., 1260-62 (3rd Cir. 1993) (environmental consultant); Cendant Corp., supra,, 343 F.3d at 664-66 (jury consultant).
- Physicians who prepare medical opinion letters at the request of an attorney or her agent. See, e.g., Sprague v. Director, Officer of Workers Compensation Programs, 688 F.2d 862, 869-70 (1st Cir. 1982).
- Officials and agents of a corporate party, even where an attorney is not present. See, e.g., Eoppolo v. Nat’l Railroad Passenger Corp., 108 F.R.D. 292, 295 (E.D. Pa. 1985) (officials who met to discuss plaintiff’s accident); Fontaine v. Sunflower Beef Carrier, Inc., 87 F.R.D. 89, 92 (E.D. Mo. 1980) (statements collected by corporate safety officials).
§5:25 How to Resolve Work Product Disputes During a Deposition
Deposition objections may be resolved in several ways: (1) through informal discussion and agreement with opposing counsel right after the question is asked; (2) if that does not work, by telephoning the court and asking for an on-the-spot decision; or (3) by making a post-deposition motion to the court for appropriate relief. The second method is discussed in detail in Chapter 16. The third method is discussed in Chapter 25.
It is often difficult to resolve a work-product objection during a deposition by telephoning the court to obtain an on-the-spot resolution, because such objections often concern work product documents that the court does not have.
Generally, the best procedure is to complete questioning on other topics and then adjourn the deposition in order to obtain a ruling on whether the document or other information at issue is work product. If a motion to compel production or a motion for a protective order is made, you should submit the work-product document to the court for review in camera (that is, for review by the court in chambers without showing it to the requesting party).
FORMS: See Form 5-2 and Form 5-3 at the end of this chapter and on the CD for a sample motion and brief to resolve a work product objection.
Joseph A. Ranney is an attorney with the Madison, Wisconsinoffice of DeWitt Ross & Stevens S.C., where he specializes in commercial and intellectual property litigation and in constitutional law.
Mr. Ranney was born in 1952 in Urbana, Illinois. He received a B.A. degree from theUniversity of Chicagoin 1972 and a J.D. degree from YaleLawSchoolin 1978. He has litigated cases in the Wisconsinand Colorado state courts and in federal courts throughout the United States.
Mr. Ranney is also an adjunct professor at MarquetteLawSchoolin Milwaukee, Wisconsin. He is the author of two books, Trusting Nothing to Providence: A History of Wisconsin’s Legal System (1999), named by the American Library Association as one of 15 Notable State and Local Government Documents for that year, and In the Wake of Slavery: Civil War, Civil Rights and the Reconstruction of Southern Law (2006). Mr. Ranney has written numerous articles and has lectured extensively on civil procedure, constitutional law, legal history and other legal subjects. He has received the State Bar of Wisconsin Charles Dunn Award (1992) and the State Bar President’s Award (2003) for his writing.