Legal Definitions - work product

In legal terms, work product refers to materials created by an attorney, or someone working under an attorney's direction, specifically in preparation for a lawsuit or potential lawsuit. The primary purpose of the work product doctrine is to protect a lawyer's thoughts, strategies, and investigative efforts from being revealed to the opposing side during the discovery phase of litigation.

Generally, work product is considered privileged, meaning it is protected from disclosure to the other party in a lawsuit. This protection allows attorneys to thoroughly investigate a case, develop legal theories, and strategize without fear that their efforts will be used against their client. However, the level of protection can vary depending on the type of work product:

• Ordinary Work Product: This includes factual information gathered during an investigation, such as summaries of witness interviews, photographs, or documents collected. While generally protected, ordinary work product can sometimes be disclosed if the opposing party can demonstrate a significant need for the information and cannot obtain it through other means (for example, if a key witness has become unavailable).
• Opinion Work Product: This category receives much stronger protection. It encompasses an attorney's personal thoughts, mental impressions, legal theories, strategic plans, and evaluations of a case. Opinion work product is almost never subject to disclosure, as revealing it would directly expose the attorney's core legal strategy and thought process.

Here are some examples to illustrate the concept of work product:

• Example 1 (Ordinary Work Product - potentially discoverable): A law firm represents a client who was injured in a construction accident. The attorney sends a paralegal to interview several construction workers who witnessed the incident and to take detailed photographs of the accident site. The paralegal compiles a report summarizing these interviews and attaches the photos.

  This report, including the witness summaries and photographs, constitutes ordinary work product. It was prepared in anticipation of litigation (a potential personal injury lawsuit). While generally protected, if, for instance, one of the interviewed workers later moves to another country and becomes unreachable, the opposing side might be able to argue they have a "substantial need" to see that specific interview summary to understand what the witness observed, as they can no longer interview the witness themselves.

• Example 2 (Opinion Work Product - highly protected): A lawyer is defending a technology company against a competitor's claim of trade secret misappropriation. The lawyer drafts a confidential memo for the internal legal team, analyzing the strengths and weaknesses of the competitor's evidence, outlining potential legal arguments for dismissal, and devising a strategy for selecting and preparing expert witnesses for trial.

  This memo is a clear example of opinion work product. It contains the attorney's mental impressions, strategic thinking, and evaluation of the legal issues. This type of material is almost always protected from discovery because revealing it would directly expose the defense's core legal strategy to the plaintiff, undermining the adversarial system.

• Example 3 (Mixed - showing both types and the distinction): A lawyer is preparing to defend a client accused of breach of contract related to a complex software development project. The lawyer hires a forensic accountant to review financial records and provide a factual report detailing the project's expenses and revenues. Separately, the lawyer drafts an internal document analyzing the accountant's findings, identifying potential legal defenses based on those figures, and outlining a plan for settlement negotiations.

  The forensic accountant's factual report on the project's finances is ordinary work product. It contains objective data gathered for the litigation. While prepared for the case, it might be discoverable if the other side can show a compelling need (e.g., if the original financial records are no longer available). In contrast, the lawyer's internal document, which analyzes those financial findings and develops legal defenses and strategies for negotiation, is opinion work product. This document reflects the attorney's strategic thinking and legal analysis, making it highly protected from discovery.