March 01, 2018 Feature

The Work-Product Protection

Michael Downey

“I need your help with a discovery issue,” Paradox told Ethox. “We represent a plaintiff suing Central Hospital. Recently, we asked for and received the hospital’s privilege log. Central Hospital withheld some documents under the attorney-client privilege. We don’t dispute these privilege claims. The documents memorialize confidential communications between the hospital and its counsel.

“But some documents logged were created without attorney involvement,” Paradox said. “The log labels these documents work product. Shouldn’t the documents be discoverable if they don’t contain attorney opinions or communications?”

“If documents are prepared in anticipation of litigation or for trial,” Ethox responded, “they may be protected product, even if they do not contain attorney communication or opinions.

“As you recognize,” Ethox said, “the attorney-client privilege protects communications made in confidence between a lawyer and client, or other privileged persons, related to the rendition of legal services. So a lawyer must be involved for a communication with a client to be privileged.

“The work-product protection, however, is a discovery rule. The first sentence of Federal Rule of Civil Procedure 26(b)(3)(A) codifies the federal work-product protection as follows:

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).

“Unlike the attorney-client privilege,” Ethox explained, “Rule 26(b)(3)(A) specifically recognizes that people other than lawyers can create work product.

“The key is whether a document or tangible thing was created in anticipation of litigation or for trial,” Ethox continued. “If the document was created for some other purpose, it may not be protected work product. Thus, if the hospital created the documents as part of its quality-assurance programs, the documents may be discoverable.”

“Wow,” Paradox remarked. “I did not realize the work-product protection was so different from the attorney-client privilege.”

“There are two major differences between the attorney-client privilege and work product,” Ethox said. “The work-product protection requires anticipated or pending litigation. The attorney-client privilege does not. And non-attorneys can create protected work product. But a lawyer must be involved in a communication for it to be privileged.”

“What are other significant differences,” Paradox asked.

“Three more worth mentioning here,” Ethox answered. “Work product protects documents and tangible things prepared for litigation, even if they are not communications. A photograph taken for litigation may be work product—for example, if someone photographs an accident scene.”

“I thought the work-product protection protects only opinions,” Paradox remarked.

“No, but this question relates to the last two differences,” Ethox said. “In the first instance, work product protects documents and tangible things—and sometimes intangible communications—whether they contain opinions or not. The key is whether they were prepared for litigation.

“Unlike the attorney-client privilege, however, the work-product doctrine allows an opposing party to discover work product by showing sufficient need.

“Rule 26(b)(3)(A) establishes a two-part test for when an adversary can discover work product. First the adversary must show the document sought is otherwise discoverable. Second, the adversary must demonstrate that it cannot obtain a substantial equivalent without undue hardship.

“If this two-part test is satisfied,” Ethox concluded, “the adversary will be able to discover regular work product. But Rule 26(b)(3)(B) protects opinion work product—of attorneys and non-attorneys both—as non-discoverable.”


Michael Downey

The author is a legal ethics lawyer and founder of Downey Law Group LLC, St. Louis.