Additionally, the work-product doctrine
protects information and documents prepared "in anticipation" of litigation.
The Court of Chancery, in its Final Order and Judgment, required Wal-Mart to produce documents to supplement the approximately 3,000 previously furnished for inspection, including documents privileged or protected by the work-product doctrine
at 239-410 ("Respondent can no more advance the work-product doctrine
to sustain a unilateral testimonial use of work-product materials than he could elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination.
For example, as Edna Selan Epstein notes in The Attorney-Client Privilege and the Work-Product Doctrine
, work product protection for client documents is waived when the documents are disclosed to an adversary or potential adversary or where disclosing the document to corporate advisers substantially increases the opportunity for potential adversaries to obtain the information.
In essence, the court asserted that neither the attorney-client privilege nor the work-product doctrine
applied to reports prepared by outside counsel because the reports were created before the insurers made a "firm decision" to either approve or deny the claim, which involved $5 million in property damage and another $65 million in business interruption (BI) losses.
This means that a memo an accountant drafts in preparation for litigation may be protected by the work-product doctrine
but not the communications the attorney had with the accountant regarding the project.
The work-product doctrine
is a qualified immunity that prevents documents and tangible things prepared by a party or the attorney for trail from being produced during discovery.
Do not worry about the work-product doctrine
as this exercise is about the privilege.
One prominent law firm described the Textron decision as "merrily roll[ing] over established notions of work-product," (2) while a representative for the Association of Corporate Counsel-an organization for in-house attorneys--described the case as "eviscerat[ing] the work-product doctrine
2010) ("In this case, however, the government attempts to discover not an independent auditor's 'interpretations of the client's financial statements,' which Arthur Young would permit, but an attorney's thoughts and opinions developed in anticipation of litigation, which the work-product doctrine
35) This special treatment for the opinion work product is justified because "[a]t its core, the work-product doctrine
shelters the mental processes of the attorney, providing a privileged area within which [s]he can analyze and prepare [her] client's case.
Her opinion notes, for example, that the "attorney-client privilege does not shield documents merely because they were transferred or routed through an attorney," and that "documents prepared by a corporation as part of efforts to ensure compliance with federal regulatory agencies or maintain a positive public image for its products, and not because of possible litigation, are not protected by [the] work-product doctrine