12. the Work Product Doctrine
12. The Work Product Doctrine
Table of Contents
I. Development of the Work Product Doctrine 1
1. California Law 2
A. Taking deposition of opposing counsel 3
II. Access to Documents 3
1. Insurance Company Files 3
2. Attorney's Files 4
III. Access to Lay Witnesses 4
IV. Access to Experts and Consultants 5
A. Testifying Experts 5
B. Non-testifying Experts (Consultants) 5
V. Exceptions to the Work Product Doctrine 7
1. The Crime Fraud Exception 7
2. The Injustice Exception 8
3. Waiver 8
VI. Acquisition of an Adversary's Confidential Information 8
1. Acquisition by Improper Means 8
2. Receipt of Inadvertently Disclosed Confidential Information 8
A. Passive recipient of confidential info knowing it was wrongfully obtained 9
I. Development of the Work Product Doctrine
The work product doctrine shields from disclosure materials prepared in anticipation of litigation by a lawyer, a party, or a party's representative.
o Hickman v. Taylor (SCOTUS)
- In order to pierce the veil of an attorney's work-product, the party seeking to invade the privacy must show (1) substantial need for the material and (2) the inability to get it somewhere else without undue hardship.
- But as to oral statements made by witnesses, whether in the form of the attorney's mental impressions or memoranda, they are only discoverable in the rare and exceptional case.
Federal rules:
- Two requirements for a party to discover documents and tangible things that are prepared in anticipation of litigation or trial by or for another party or representative:
(1) The party shows that it has substantial need for the materials to prepare its case; and
(2) Cannot, without undue hardship, obtain their substantial equivalent by other means.
However, core, opinion or pure work product that encompasses the "mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation" is given near absolute protection from discovery because it is discoverable only upon a showing of rare and exceptional circumstances or upon a showing of extraordinary justification.
1. California Law
(1) A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
- Thus, in contrast to federal law, California's protection of an attorney's opinion work product is absolutely insulated from discovery.
(2) The work product of an attorney, other than a writing described above, is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in injustice.
Crime-fraud exception: there is no work product protection when a lawyer is suspected of knowingly participating in a crime or fraud, or if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or fraud.
Disciplinary proceedings: the State Bar may discover the work product of an attorney against whom disciplinary charges are pending when it is relevant to issue of breach of duty by the lawyer and requisite client approval has been granted.
· Note: Whenever a client has initiated a complaint against an attorney, the requisite client approval shall be deemed to have been granted.
Allegations by client against attorney: in an action between an attorney and a client or a former client of the attorney, no work product privilege exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.
Definition of work-product: work product consists of the attorney's effort, research and thought in the preparation of a client's case, including the results of work done by the attorney, by persons employed by the attorney, and by persons employed for the attorney by the client.
- A document, in order to receive work product privilege status, must have been generated at the request of an attorney in preparation for litigation.
- The work product privilege extends beyond the termination of the litigation for which the documents were prepared.
The holder of the privilege is the attorney, not the client.
If the attorney dies or the representation is terminated, arguably the work product privilege attaches to the client upon the attorney's death or resignation from the case.
May a client have access to the attorney's opinion work product if the attorney does not want to reveal it?
Two situations where a client wants access to attorney’s work product but attorney does not want to reveal it:
(1) The client is suing the attorney for malpractice and wants the work product to help prove the case; and
· California: no work product privilege exists if the work product is relevant to an issue of breach by the attorney
(2) The client has obtained new counsel who wants the documents in order to continue the client's case.
· California: that an attorney must "provide copies to the client of certain documents…as prescribed in a rule of professional conduct…"
A. Taking deposition of opposing counsel
Depositions of opposing counsel are presumptively improper; however, in rare situations, if counsel can show "extremely good cause," it may be possible.
California adopted a three-prong test in deciding whether to permit taking opposing counsel's deposition:
(1) Does the party seeking to take the deposition have other means to obtain the information?
(2) Is the information crucial to the preparation of the case? and
(3) Is the information subject to a privilege?
The party seeking to take the deposition has the burden of proof to establish the predicate circumstances for the first two prongs, and the party opposing the deposition has the burden of proof to establish the third prong.
II. Access to Documents
1. Insurance Company Files
Documents in an insurer's file do not have to be prepared by an attorney to be covered by the work product rule.
- No rule that all documents in an insurance claim must be considered in anticipation of litigation.
- Case-by-case determination where the court should consider (1) the nature of the requested documents, (2) the reason the documents were prepared, (3) the relationship between the preparer of the document and the party seeking its protection from discovery, (4) the relationship between the litigating parties, (5) and any other facts relevant to the issue.
2. Attorney's Files
The work product doctrine extends protection not just to an attorney's work product, but to the efforts of those who work with him to prepare the defense.
Protection is not given where the investigation or work done was not at the request of the attorney.
- Legal Research: the work product privilege protects an attorney's research.
- Legal Theories: California, the writings of attorney's that reflect their impressions, conclusions, opinions or legal research theories are absolutely protected.
- Memos: A law firm's interoffice memos concerning its representation of the client are considered core or opinion work product.
- Notes: All oral communications between a client's attorneys that are reduced to written form by the attorneys and not communicated outside their law firm are absolutely privileged from discovery.
§ Unlike interview notes prepared by counsel, statements written or recorded independently by witnesses do not reflect the attorney's evaluation of the case and therefore are neither absolute nor qualified work product.
§ However, any portion of the attorney's notes consisting of the attorney's comments concerning a witness' statement is protected absolutely from disclosure.
- Reports, exhibits and appraisals: any materials such as diagrams or exhibits prepared for trial, audit reports, appraisals, or consultant opinions, which are developed on the initiative of counsel in preparing for trial, are privileged as work product, unless they are to be introduced into evidence.
- Surveillance Films: Surveillance material which will not be introduced at trial is generally not discoverable. If the surveillance materials will be used at trial, however, they are discoverable.
§ Where a party intends to introduce some surveillance films into evidence and shields others from discovery, discovery of all of the films is proper.
However, discovery is permitted if there is the requisite showing of substantial need and undue hardship.
III. Access to Lay Witnesses
Discovery is permitted of the names of all fact witnesses (those with knowledge of relevant facts).
Discovery of the identity of which particular percipient witnesses is protected by work-product.
IV. Access to Experts and Consultants
A. Testifying Experts
Discovery is permitted of the names of all expert witnesses who are expected to testify at the trial, and discovery is permitted of those experts’ reports. Those experts may be disposed by opposing counsel.
But what if an attorney communicates his or her impressions, opinions or legal theories to the expert who will testify at trial, only the "factual" matters considered by the expert are discoverable.
The preliminary drafts of an expert's report because they drafts might reveal the influence of the lawyer in the revisions.
(a) "Red Rover" Experts – withdrawn testifying experts
By declaring that an expert will be produced at trial and providing the expert's identity and opinion to another party, the original proponent has waived his claim that the information is privileged.
- An opposing party may call the other party’s testifying expert
Red rover witness: an opponent's prior expert
The party now retaining the opposing party’s former witness cannot bring up the fact the opposing party previously retained the witness, unless the opposing party brings it up or questions the expert’s qualifications.
B. Non-testifying Experts (Consultants)
(a) Deposing Opposing Consultant
An attorney may not depose an opposing consultant who will not testify at trial, unless there is a showing of exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.
- Example: an expert who has examined or tested a relevant object and the object is no longer available or the testing so altered the object tested that the adversary party cannot make like tests
Where the expert is withdrawn in exchange for payment so he does not testify, this is an illegal agreement made in the attempt to suppress evidence and will not be valid.
(b) "Red Rover" Consultants
May consultants, who are retained to give expert advice to an attorney, but are not designated to testify, be called as experts for the opposing side?
- A party may withdraw a previously designated expert witness, not yet disposed, for tactical reasons. And if that expert continues his or her relationship with the party as a consultant, the opposing party is barred from communicating with the expert and from retaining him or her as the opposing party's expert.
When an attorney disposes such an export, he must be recused. Having been privy to an opposing attorney's work product, there is no way the offending attorney could separate that knowledge from his or her preparation of the case.
(c) Experts, Consultants, or Witnesses
In a medical or accident case, the treating doctors may be called to testify because they are fact witnesses. They are not testifying as an "expert"; therefore, they need not be qualified as an "expert" to testify.
(d) Beauty Contests - Protecting Confidences
o Wang Laboratories
- A consultant may not serve as one party's expert where the consultant received confidential information from the adverse party pursuant to earlier retention.
A two-step inquiry is used to decide whether the earlier retention and passage of confidential information occurred:
(1) is it reasonable for the first party who claims to have retained the consultant to conclude that a confidential relationship existed?
(2) If yes, was any confidential or privileged information disclosed by the first party to the consultant?
· If yes to both, the expert must be disqualified
- Disqualification is not appropriate where there was no reasonable expectation that the confidences would be protected (e.g., expert’s form signed by counsel stating no confidentiality)
· If no confidential information passed, no disqualification
If an expert who had received confidential information is disposed or retained by an attorney, a rebuttable presumption arises that confidential information was disclosed to the subsequent attorney.
- Subsequent counsel must prove that he or she received no confidential information from the expert.
If the presumption is not rebutted and the counsel is disqualified, should the entire firm also be disqualified?
- Another rebuttable presumption arises where the subsequent attorney will have to show that no other members of their firm came in contact with the confidential information derived from the opposing side's previously retained expert.
If a lawyer is hired as an expert witness (e.g., patent attorney as an expert in patents) and is given confidential information, the imputed disqualification theory that the expert (here, attorney) will spread the confidential information throughout the firm does not exist.
Screening – (MR requires):
(1) disqualified lawyer is screened and apportioned no part of the fee; and
(2) former client is notified of conflict; and
(3) certification of compliance is provided
- The screening consists of a “fictional wall” around the lawyer such that he is not consulted on any matters relating to the representation and takes no share of the fee
(e) Beauty Contests - Intentional Suppression
An attorney may retain a “troublesome” expert (one who would offer testimony against that attorney’s position), may hire the expert as a consultant to prevent the opposing counsel from having that testimony.
- Remember, fact witnesses cannot be kept away from either party
- Currently, California has not passed a statute prohibiting counsel from hiring previous jurors as consultants (e.g., in a case that came to a hung jury and will have to be retried)
V. Exceptions to the Work Product Doctrine
1. The Crime Fraud Exception
Federal law: there is a crime-fraud exception to the work product doctrine.
California: no exception unless for official investigations.
With regard to civil proceedings, there is no crime-fraud exception.