Legal Definitions - attorney work product privilege

The attorney work product privilege is a legal principle designed to protect certain materials an attorney prepares in anticipation of litigation from being discovered by the opposing side. It allows lawyers to thoroughly investigate, analyze, and strategize for a lawsuit without fear that their thought processes, legal theories, and preparations will be immediately accessible to their adversaries.

This privilege covers documents, notes, memos, investigative reports, and other tangible items created by an attorney, or someone working on their behalf, specifically for an upcoming or ongoing legal dispute. While it shields an attorney's strategic thinking and preparations, it's important to note that it does not protect the underlying facts of a case. For instance, if a document states a particular event occurred, the fact of that event is not privileged, even if the attorney's analysis of it is.

The work product privilege is not absolute. A court may order the disclosure of protected materials if the opposing party can demonstrate a substantial need for the information to prepare their case and cannot obtain its equivalent through other reasonable means. This usually applies to factual information that is uniquely contained within the work product and is critical to the case.

The privilege can also be waived, or lost, if an attorney voluntarily discloses the protected work product to a third party in a way that undermines its confidential nature or makes it likely to fall into the hands of an adversary.

• Example 1: Internal Strategy Memo

  Scenario: A law firm is defending a construction company against a lawsuit alleging faulty building materials. One of the attorneys drafts a detailed internal memo for the legal team outlining potential weaknesses in their client's defense, exploring various legal arguments the opposing side might use, and brainstorming counter-arguments and settlement strategies.

  Explanation: This memo is protected by the attorney work product privilege because it was created by an attorney specifically in anticipation of litigation. It reflects the attorney's mental impressions, legal theories, and strategic thinking about the case, which are precisely what the privilege aims to protect from the opposing party.

• Example 2: Investigator's Report for Litigation

  Scenario: An attorney representing a client in a product liability case hires a private investigator to examine the design flaws of a defective appliance. The investigator compiles a report detailing observations, expert opinions on the defect, and the investigator's own analysis of how these findings might be presented as evidence in the anticipated lawsuit.

  Explanation: The investigator's report, created at the attorney's direction and in anticipation of litigation, falls under the work product privilege. While the underlying facts (e.g., the specific design flaw) are not privileged, the investigator's selection of information, analysis, and strategic presentation within the report, reflecting the attorney's litigation strategy, are protected.

• Example 3: Attorney's Witness Interview Notes

  Scenario: An attorney is preparing for a breach of contract dispute and conducts an interview with a key witness. During the interview, the attorney takes extensive handwritten notes that not only record the witness's statements but also include the attorney's personal observations about the witness's demeanor, strategic questions asked, and mental impressions regarding how the testimony might impact the case.

  Explanation: These notes are a classic example of attorney work product. They contain the attorney's subjective thoughts, evaluations, and strategic insights developed while preparing for litigation. While the factual statements made by the witness might be discoverable through other means, the attorney's specific selection of what to note, their personal commentary, and their strategic approach to the interview are protected.