Work Product Rule

Work Product Rule

A legal doctrine that provides that certain materials prepared by an attorney who is acting on behalf of his or her client during preparation for litigation are privileged from discovery by the attorney for the opposition party.

Under rules of civil and Criminal Procedure, as well as some statutes, parties to a civil lawsuit or a criminal prosecution must provide each other with information about the pending litigation. If a party will not disclose information during the discovery process, a court may issue an order compelling the production of evidence.

The work product rule is an exception to the concept of sharing information. This rule is based on the attorney-client relationship, which includes maintaining the confidentiality of information given by the client. The general rule is that legal research, records, correspondence, reports, or memoranda are attorney work product to the extent that they contain the opinions, theories, strategies, mental impressions, or conclusions of the client, the attorney, or persons participating in the case with the attorney, such as a jury consultant.The U.S. Supreme Court, in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), upheld the legitimacy of the work product rule contained in the Federal Rules of Civil Procedure. Since the Hickman decision, there have been numerous cases in federal and state courts involving disputes over what constitutes non-discoverable work product.

For example, in Bondy v. Brophy, 124 F.R.D. 517 (D. Mass. 1989), the federal district court ruled that the work product rule applied to information obtained by an investigator hired by the attorney for Edna Bondy, the administrator of a probate estate, to look into decedent John Harrington's property transfers. Bondy sued Carolyn Brophy regarding one of the transfers, and Brophy sought to obtain information from the investigator, including identities of persons investigated, identities of persons contacted, and copies of any and all written reports. She argued that the work product rule only applied to information gathered for a trial or litigation and that at the time of the investigation, no litigation was contemplated. The court rejected her argument, finding that the information collected was not in the ordinary course of business, nor was it typical for the administrator of an estate to hire an investigator to look into property transfers of a decedent. The only reasonable inference is that the investigator was hired because Bondy had questions about these transfers and was considering appropriate legal action if the inquiry turned up evidence of questionable conduct. Moreover, the investigator was hired by Bondy's lawyer. Under these circumstances, the investigator's report and the names of persons he contacted enjoyed qualified protection under the work product rule.


Attorney-Client Privilege.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
The regulations contained exceptions for evidence protected by the attorney-client privilege and work product rule (shielding certain materials prepared for trial by a lawyer).
The literature discussing the application of the work product rule
protection from disclosure under the work product rule. (76) The Federal
district court reviewed the scope of the work product rule and the attorney-client privilege in the context of an IRS audit.
Under the work product rule, a party to federal litigation "may not discover documents ...
(13) Noting that the company's investigation of a legal problem led to the discovery of a potential company business problem, the Deason court ruled that recommendations containing the thoughts and impressions of personnel managers based on counsel's communication to them were not protected under the attorney work product rule. (14) While employee interviews were conducted in anticipation of litigation, it had not been proven that the panel recommendations were prepared for anything other than management's business decision regarding disciplining its employees.
The work product rule protects documents and other materials prepared in anticipation of litigation.
The primary confusion surrounded the phrase, "subject to the provisions of subdivision (b)(4) of this rule," at the beginning of the work product rule. The question was whether that phrase was meant to apply only to the first sentence of that paragraph (the general work produce rule providing that materials prepared in anticipation of trial are discoverable only upon a showing of need), or if it was also meant to apply to the second sentence (the opinion work product rule providing that an attorney's mental impressions are not discoverable notwithstanding a showing of substantial need).
Another ground for objections is the work product rule. The seminal case defining attorney work product is Hickman v.
The workpapers fell within the work product rule described by the Supreme Court in Hickman v.
Some of the earlier cases went on the theory that material of this kind was not within the work product rule at all, since it does not require the skill of an attorney.
Supreme Court codified the common law work product rule of Hickman v.