Unlike the attorney-client privilege, which protects a private relationship in order to promote accurate legal advice and compliance with the law, the work product doctrine promotes the adversarial process, by protecting an attorney’s preparatory work for litigation. In other words, the attorney-client privilege focuses on encouraging the client to communicate freely with the lawyer. The work product doctrine is designed to encourage careful and thorough trial preparation by the lawyer.
Elements of Work-Production Protection
Work product protection has three required elements including:
1. documents or tangible things;
Compilations of selected documents constitute work product. Lawyer-selected compilations of documents for use in preparing a witness for deposition have been recognized as opinion work product.
2. prepared in anticipation of litigation;
There are two aspects of the “prepared in anticipation of litigation” requirement: causation and reasonable anticipation. To meet the causation element, the work product claimant must show that the anticipation of litigation caused the preparation of the material. To meet the “reasonable anticipation” test, there must be a “substantial and significant threat of litigation” shown by objective facts that reveal “an identifiable resolve to litigate.
3. prepared by or for a party or by or for a party’s representative.
Whether work-production protection applies if litigation materials is prepared by a non-attorney. Some courts have held that unless an attorney is directing, controlling, or requesting the non-attorney’s efforts, the materials produced are not protected as work product. While other courts have accepted and have found “involvement of an attorney”.
Opinion work product
Opinion work product consists of the mental impressions, subjective evaluations, strategy, opinions, legal theories, and conclusions of counsel, and the subjective evaluations and mental impressions of counsel’s agents. It is clear that opinion work product enjoys almost absolute protection.
Fact work product
Fact work product includes “everything other than the ‘mental impressions, conclusions, opinions or legal theories’ of the attorney”. It encompasses such things as photographs, sketches, questionnaires, indices (electronic and paper), surveys, financial analyses, computer databases, and diagrams. However, the facts contained in the work product material are not subject to protection and are discoverable.
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