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The Work Product Doctrine

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“Work Product” 
Documents crafted by attorneys in anticipation of litigation. Contain the thoughts and mental impressions of the lawyer, and thus are generally not discoverable. 

“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.

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:

EXAMPLE: Prior to dying suddenly of a heart attack, Amos was interviewed by his attorney about a car accident in which Amos accidentally rammed into a Hummer while Amos was approaching a stop sign. Amos revealed to the attorney that the Hummer started to move and then came to an abrupt halt just as Amos began to move forward. When the Hummer unexpectedly stopped, Amos couldn't hit the brakes fast enough, crashed into the Hummer, and rendered it unusable. The attorney for the Hummer’s driver, who is suing the executor of Amos' estate, wants to obtain the notes taken by Amos’s attorney on Amos’s description of the accident. There is absolutely no other written record of Amos’s description of the incident other than what is expressed on these documents, filtered through the mind of Amos’s attorney. Are these notes discoverable, or will they be protected by the work product doctrine? 

This is difficult to answer, and a judge might go either way. Here, it seems as if the Hummer driver's attorney may demonstrate a substantial need, since there is no other written record of Amos’s testimony. However, while a judge could probably justify demanding production of the document on these grounds, judges are notoriously difficult to convince when it comes to attempting to obtain documents containing attorney thoughts and impressions. 

Perhaps the documents could be redacted (edited) to include only the purported statements of Amos, but those statements would still be of questionable value if they are not precisely Amos’s words – the attorney’s thoughts and impressions would probably have permeated the text. 

As a side note, Amos’s attorney might voluntarily turn over the documents if he thought it could help his client's case, and if he thought the case would not suffer if his thoughts and impressions were communicated to the adversary. After all, if Amos had a plausible explanation for the accident, and that explanation was memorialized in a document, it could only help his case if a judge found the document to be relevant and reliable. 

Reliability, however, would be a problem, since the attorney’s thoughts might be inextricably intertwined with Amos’s testimony. These are important issues on which a course in evidence would shed some more light. Attorneys with litigation experience often exploit every angle available when it comes to the rules of evidence – there is thus always a chance that a coveted piece of evidence could be made available with a clever invocation or interpretation of the evidentiary rules.