2011), or that the documents were made in 'anticipation of litigation' under the work-product doctrine
looked at the legal bills and agreed with the city's position that the redacted information was exempt from disclosure as attorney-client privileged or protected by the work-product doctrine
The Supreme Court promulgated amendments to these rules adopting a new rule, numbered 502, governing disclosures covered by attorney-client privilege or work-product doctrine
, and amendments to Rules 404 and 1101, effective January 1, 2019.
The 6th Circuit also held that the work-product doctrine
was not applicable.
The two primary grounds for such protection are the attorney-client privilege and the derivative and more recent attorney work-product doctrine
The work-product doctrine
, set forth in Rule 26(b)(3) of the
Circuit in order to determine which, if any, of the communications are protected by the work-product doctrine
or attorney-client privilege.
Adlman, (10) the Second Circuit held that "a document created because of anticipated litigation, which tends to reveal mental impressions, conclusions, opinions, or theories concerning the litigation, does not lose work-product protection merely because it is intended to assist in the making of a business decision influenced by the likely outcome of the anticipated litigation." However, the Second Circuit also explained that the work-product doctrine
does not apply to "documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the 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
. Among the documents Wal-Mart was required to produce were: (1) officer-level documents; (2) documents protected by the attorney-client privilege; (3) "documents spanning a seven-year period;" (4) disaster recovery tapes for data from two custodians to complement disaster tape recovery data voluntarily collected by the superstore for nine other custodians; and (5) documents "known to exist" by Wal-Mart's Office of General Counsel.
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.") (citations omitted).
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.