In American
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
, the work-product doctrine protects materials prepared in anticipation of
litigation
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
from
discovery
Discovery may refer to:
* Discovery (observation), observing or finding something unknown
* Discovery (fiction), a character's learning something unknown
* Discovery (law), a process in courts of law relating to evidence
Discovery, The Discovery ...
by opposing counsel. 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." 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.
Doctrine
Under the work-product doctrine, "tangible material or its intangible equivalent" that is collected or prepared in anticipation of litigation is not discoverable.
['']Hickman v. Taylor
''Hickman v. Taylor'', 329 U.S. 495 (1947), is a seminal United States Supreme Court case in which the Court recognized the work-product doctrine, which holds that information obtained or produced by or for attorneys in anticipation of litigati ...
''.
Comparison with attorney–client privilege
The work-product doctrine is more inclusive than
attorney–client privilege
Attorney–client privilege or lawyer–client privilege is the name given to the common law concept of legal professional privilege in the United States. Attorney–client privilege is " client's right to refuse to disclose and to prevent any ...
. 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.
History
The work-product doctrine originated in the 1947 case of ''
Hickman v. Taylor
''Hickman v. Taylor'', 329 U.S. 495 (1947), is a seminal United States Supreme Court case in which the Court recognized the work-product doctrine, which holds that information obtained or produced by or for attorneys in anticipation of litigati ...
'', in which the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
affirmed a
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a federal court with appellate jurisdiction over the district courts for the following districts:
* District of Delaware
* District of New Jersey
* Ea ...
decision which excluded from discovery of oral and written statements made by witnesses to a defendant's attorney.
The Supreme Court, acting at the recommendation of the Advisory Committee of the
Judicial Conference
The Judicial Conference of the United States, formerly known as the Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial cour ...
, later enshrined this doctrine formally in the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
as Rule 26(b)(3).
["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 {{cite book , title=Federal Rules of Civil Procedure, and Selected Other Procedural Provisions , editor=Kevin M. Clermont , publisher=Foundation Press , year=2006 , location=New York]
References
External links
Expanding Scope of Attorney-Work-Product Doctrine: United States v. Aldman
Civil procedure
Privileged communication