When resolving discovery motions, I sometimes must examine a party’s privilege log to determine whether documents have been properly withheld from discovery based on the attorney-client privilege or attorney work-product doctrine. The contours of the attorney-client privilege are generally well understood, but the work-product analysis can be more nuanced. When preparing privilege log entries, lawyers sometimes do not acknowledge—whether deliberately or unwittingly—important limitations on the protections afforded by the work-product doctrine. In diversity cases, while the applicable state law governs privilege issues, federal law governs the work-product analysis.
Attorney Work-Product Doctrine—Not a Privilege
A common misconception is that the work-product doctrine is a privilege. It is not. Unlike the attorney-client privilege, which provides almost absolute protection against disclosure of communications between a client and his or her attorney, the work-product doctrine is a qualified immunity that protects from discovery documents prepared by a party or its counsel in anticipation of litigation that reveal a lawyer’s opinions and mental impressions. The primary purpose of the work-product doctrine is to prevent a party from exploiting the opposing party’s litigation preparation.
Facts are never shielded from discovery. But the work-product doctrine may protect a lawyer’s analysis, strategy, and opinions about those facts. To qualify for work-product protection, two requirements must be satisfied: (1) the material must be prepared in anticipation of litigation or for trial; and (2) it must be prepared by or for another party or by or for the party’s counsel. The protection, however, is not absolute.
Courts May Order Discovery of Work Product—Within Limits
Federal Rule of Civil Procedure 26(b)(1) permits discovery “regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Notably, Rule 26(b)(3) addresses trial preparation materials and provides, “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by another party, or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” Notwithstanding these provisions, a court may, under Rule 26(b)(3)(A), permit discovery of documents prepared in anticipation of litigation or trial if the material is “otherwise discoverable under Rule 26(b)(1)” and the party seeking discovery “shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”
To persuade the court to order discovery of an opposing party’s litigation prep or trial-related material, the demanding party should present affidavits that show the importance of the material that concrete, not just theoretical, hardship will occur if it is not disclosed; and that demonstrate efforts to obtain the information by other means.
Not All Work Product Is Equal
Courts distinguish between “opinion” or “core” work product and “non-core” work product. Materials that disclose an attorney’s mental impressions and opinions are considered “core” work product and are afforded heightened protection. To obtain discovery of “core” work product, an opposing party must show that the lawyer’s mental impressions themselves are at issue in the case and the need for disclosure is compelling. Even when a court orders disclosure of some litigation- or trial-related materials, under Rule 26(b)(3)(B), the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Information that does not reveal an attorney’s mental impressions and opinions is considered “non-core” work product and can be obtained under Rule 26(b)(3)(B).
Challenging Work-Product Designations
Rule 26(b)(3)(A) sets a high, but not insurmountable, bar for a party seeking disclosure of work-product materials. That party should demonstrate through affidavits that the information is relevant and proportional under Rule 26(b)(1), that the information is critically important to the demanding party’s case, and that the party cannot obtain substantially equivalent material without undue hardship.
A common challenge to work-product designations is that the documents were not prepared in anticipation of litigation, but are, in fact, routine business documents. These may include drafts of internal business documents prepared by a party’s employees in the ordinary course of business such as press releases, company policy statements, manuals, and notices to customers, where, based on the date or other circumstances, there is no notice of or concern about potential litigation. Just because a lawyer may have reviewed internal drafts does not automatically make the information subject to work-product protection.
The primary purpose of the work-product doctrine is to prevent a party from exploiting the opposing party's litigation preparation
Courts have cautioned that even when litigation may have been reasonably anticipated, this does not “cloak” routinely generated business documents with work-product protection. On the other hand, if drafts are sent to in-house or outside counsel who then redlines the material or includes annotations reflecting legal advice, the analysis is different. The redlined documents may contain protected attorney-client communications, which affords a higher level of protection from disclosure.
Other frequently challenged materials are those that appear to have been prepared by a third party at the request of the party’s attorney. When a party delegates business functions to outside counsel who then hires outside vendors to perform those tasks, this will not provide work-product protection for material created to fulfill these business functions.
Another common dispute involves documents prepared by employees or third-party vendors as part of an internal investigation. When such documents contain information that was requested by counsel but were prepared by a company’s non-attorney technical staff or third-party vendors, the court must consider both the nature of the information and the nature of the vendor-company relationship. One district court held, in the context of an outside vendor’s analysis and report on a data security breach, that the company’s delegation of oversight of the vendor’s investigation to outside counsel did not automatically make the vendor’s report work-product. In In re Premera Blue Cross Customer Data Security Breach Litigation, the court noted that because the company had a long-standing services agreement with the vendor for such services, the agreement long preceded the data breach at issue, and the company had previously provided direct supervision over the vendor’s services, simply making outside counsel responsible for supervising the vendor’s work did not change the scope of the vendor’s work and did not render all of the “later communications and underlying documents privileged or immune from discovery as work-product.”
Tips for Defensible Work-Product Designations
Because the work-product protection is not absolute, counsel must take care when designating work product on a privilege log. To withstand a challenge under Rule 26(b)(3), counsel should determine whether the information was generated in anticipation of litigation or as part of routine business procedures. First, carefully consider whether the documents would have been created except for the prospect of litigation. Second, when employees have prepared materials as part of internal business functions, annotations that disclose an attorney’s opinions, strategy, and mental impressions will be considered “core” work product and/or attorney-client communications. Realistically, some portions of these documents may need to be disclosed in discovery. Rather than reflexively listing the entire document on the privilege log, consider whether redactions are appropriate. Finally, if the information was prepared by a third-party vendor or consultant, counsel should understand whether those third parties were acting pursuant to a long-standing services agreement with the business itself. Never assume your privilege log is unassailable. But with thoughtful, detailed preparation, you can make sure each work-product entry on the log will withstand the court’s scrutiny.
- Elizabeth Bower, William Stellmach, Phillip DiSanto, and Amber Unala, “Protecting Attorney Client Privilege and Work-Product Doctrine in Internal Investigations,” Pretrial Prac. & Discovery (Oct. 26, 2020).
- In re Capital One Consumer Data Sec. Breach Litig., No. 1:19-MD-2915, 641 (E.D. Va. June 25, 2020), ECF No. 641.
- In re Premera Blue Cross Customer Data Sec. Breach Litig., 296 F. Supp. 3d 1230 (D. Or. 2017).
- Fed. R. Civ. P. 26: Duty to Disclose; General Provisions Governing Discovery.
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