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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 kin ...
, the work-product doctrine protects materials prepared in anticipation of litigation from 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''.


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'', in which the Supreme Court 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 * East ...
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 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