Discovery and evidence
Work Product Doctrine
The work product doctrine shields materials a party or its lawyer prepared in anticipation of litigation from discovery by the other side.
It protects the preparation, not the communication, so it can cover investigator reports, witness interview memos, and litigation strategy documents even where no lawyer was involved. Ordinary work product can be discovered on a showing of substantial need and inability to get the equivalent elsewhere.
Opinion work product, meaning a lawyer's mental impressions and legal theories, receives near-absolute protection and is almost never ordered produced.
Disputes usually turn on timing. A report prepared in the ordinary course of business is discoverable, while the same report prepared because litigation was expected is protected, so the date and the trigger for the work matter enormously. The protection extends to consultants and investigators working at counsel's direction, which is why sensitive internal reviews are usually run through the legal department rather than through operations.
How it appears on a docket
ORDER denying motion to compel the internal investigation memoranda; the court finds them protected opinion work product prepared in anticipation of litigation.
Governing rule
Fed. R. Civ. P. 26(b)(3)
Related terms
- Attorney-Client Privilege — The attorney-client privilege protects confidential communications between a lawyer and client made for the purpose of getting or giving legal advice.
- Privilege Log — A privilege log is the list a party must produce describing documents it is withholding as privileged, without revealing their contents.
More on discovery and evidence
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