The Work Product Doctrine
“The Work Product Doctrine”
The work product doctrine is another limitation on discoverable material. It protects certain documents, crafted by a lawyer in anticipation of litigation, that are not covered by any of the aforementioned privileges. At issue is whether the thoughts and mental impressions of the lawyer, memorialized in notes and other documents and crafted in anticipation of litigation are discoverable by an adversary.
In the important case of Hickman v. Taylor, 329 U.S. 495 (1946), the United States Supreme Court ruled on whether notes taken by an attorney interviewing witnesses to the sinking of a boat would be discoverable. Apparently, the attorney’s notes were intensely sought by the opposition as evidence for their case. The attorney’s notes were filled with his own impressions and thoughts of the witness testimony. The opposition’s obtaining such documents would have served the dual purpose of procuring information disclosed by the witnesses and gaining insight into the thoughts of the attorney about an integral aspect to his case. The court held that these notes, largely because they contained thoughts and impressions of an attorney, cannot be discoverable:
“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests.”
The court was greatly concerned that a lawyer’s preparation and strategies for litigation would be hampered if the lawyer knew that the adversary could subpoena his personal notes about a case. Again, the notes were reportedly “permeated” with the attorney’s thoughts and impressions of the witnesses. On some level, discovery of the notes was akin to getting hold of an opposing coach’s playbook – if the adversary knows which plays the opposing coach will call in a given situation, the adversary earns a great technical advantage.
The Hickman court was concerned that if lawyer notes were discoverable, lawyers would not feel free to be creative in crafting strategies for their clients’ cases, or that lawyers, knowing that their personal notes could be obtained, would stop keeping written records of their thoughts and impressions. This, in the end, would not serve the client well, especially in a long, complicated case with many witnesses and documents to craft strategies around.
The Hickman court stated that forcing a lawyer to “testify as to what he remembers or what he saw fit to write down … could not qualify as evidence; and to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness. The standard of the profession would thereby suffer.”
There is one caveat regarding application of the work product doctrine that we should consider. Courts have stated that the party seeking a document that is protected by the doctrine would have a chance to obtain it if they demonstrate a substantial need and are unable to obtain the equivalent without undue hardship. The United States Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981), however, held that when attorney work product is based on witnesses’ oral statements (such as in the Hickman scenario), the adversary seeking the document must make a very strong showing of necessity to overcome the protection of the work product doctrine.
To sum up our study of the work product doctrine: non-privileged documents may enjoy protection during discovery or at trial by application of the work product doctrine if the documents include mental impressions of the attorney and if the party seeking the documents cannot show a substantial need or an inability to obtain equivalent information without undue hardship. Let’s look at an example to shore up what we explored on this topic: