Nov 22, 2019 3:14:08 PM

The Work Product Privilege – A Primer

As an in-house lawyer, I was always interested in any legitimate way I could keep information generated by the company or the legal department confidential.  Or, more importantly, out of the hands of our adversaries.  As a lawyer, I had a particular interest in how privilege might apply to the materials I – or my team - was working on.  The most obvious was the attorney-client privilege.  Somewhat less obvious  is the work product privilege.   While more limited in the circumstances in which it applies, it is powerful and can save the day when something happens to make the attorney-client privilege fall away.  Here’s what you need to know:

1. What is the work product privilege?  First, I discovered that it’s not really considered a “privilege” in the pure sense of the word.  It’s actually considered a “doctrine” or a rule. The privilege was first set out in 1947 by the Supreme Court in a case called Hickman v. Taylor.  A few decades later, the privilege was codified into the Federal Rules of Civil Procedure in what is now Rule 26.  Most U.S. states have equivalent rules in their civil procedure codes. The work product privilege protects from discovery those “documents and tangible things” that are “prepared in anticipation of litigation” by (or for) a party or its representative.  A party seeking discovery may overcome the work product privilege if they can show they have a “substantial need” for the materials to prepare their case and they cannot obtain the substantial equivalent of the other party’s work product through “other means” without “undue hardship.”  However, even if a party can show such a need, courts must protect from disclosure attorney-client communications and the “mental impressions, conclusions, opinions, or legal theories” of a party’s attorney or other representatives concerning the litigation.

2. Must be prepared in anticipation of litigation.  This is the key to seeking work product protection, the materials must have been prepared in anticipation of litigation.  Without this fact present, the materials are not protected.  Reports and materials produced in the ordinary course of the business do not qualify as work product. What qualifies as “anticipation” of litigation is mixed.  Some courts require an actual claim or specific threat be on file or made.  Others are looser, anywhere from “real and imminent” to “substantial probability” to “fairly foreseeable.”  As to the documents created, courts use one of three tests:

  • “Because of” – under the facts, the document “can fairly be said to have been prepared or obtained because of the prospect of litigation.” This is the majority test and easier to meet than the next two.

  • “Primary motivating factor” – preparation for litigation must have been the primary motivation for the creation of a document.

  • “For use in” - only documents created specifically for use in litigation are protected by the work product privilege (by far the most restrictive test but is limited to just a few jurisdictions).

Bottom line is you should check in the jurisdictions where your company operates/you practice and try to understand the standard used there.

3. What constitutes “litigation”? The good news for those looking to assert the privilege is that what can qualify as “litigation” is fairly broad, including:

  • Judicial proceedings.

  • Arbitration.

  • Mediation.

  • Administrative proceedings.

  • Government investigation.

  • Grand jury investigation.

  • Subpoenas.

  • Letter/communication threatening litigation.

  • On-going class actions or similar multiple-front litigation (think toxic tort litigation in multiple jurisdictions for example).

  • Preparing a complaint.

  • Internal investigations.

In-house counsel can also trigger a “litigation” event by documenting the concern of litigation, engaging counsel, or otherwise planning on litigation in some manner.

4. Who can create work product?  Obviously, attorneys can create work product but so can the client.  This means your colleagues on the business side of the house can create privileged documents if they were created in anticipation of litigation.  This also means it’s worth training the business on how best to draft, label, and document when something is created in anticipation of litigation.  Additionally, agents, consultants, experts (testifying or not), and so on can create protected work product if they are a “representative” of the client or attorney.  With respect to representatives, you should document the anticipated litigation in your engagement letter or in other documentation so it’s clear why their work product is protected.

5. How does the work product privilege differ from the attorney-client privilege?  As you can see from the above, there are some big differences between the two.  Work product only applies to materials prepared in anticipation of litigation and it is not absolute.  The work product privilege typically lasts as long as there is litigation unlike the “forever-ness” of the attorney-client privilege. But, the work product privilege brings some big pluses to the table:

  • There does not need to be a communication for the privilege to apply, nor does it necessarily need to be confidential.

  • Work product does not need to be “legal advice.”

  • It’s difficult to waive the work product privilege.

  • Work product can easily be created by the client and by representatives without involving a lawyer.

6. Overcoming the work product privilege.  As mentioned, and unlike the attorney-client privilege, the work product privilege is not absolute.  Rule 26(b)(3)(A) and (B) states:

… [work product] materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.

Fortunately, as you see from 26(b)(3)(B), the ability to obtain work product is limited to fact work product.  Opinion work product is, for all practical purposes, nearly absolutely protected against disclosure. In order to get at fact work product, a party must show both substantial need and the inability to obtain the substantial equivalent by other means. It takes truly special circumstances and a lot of effort to get fact work product.  The most typical examples are statements or interviews of now deceased witnesses, photographs or video of an accident scene taken at the time of the accident, or situations where the cost or effort to duplicate the fact work product is truly prohibitive.

7. Who can assert it?  The attorney-client privilege belongs to and can only be asserted by the client.  Work product is different.  Whoever creates work product has the right to assert the privilege. Non-parties to the litigation usually cannot assert work product, though they may be able to assert attorney-client privilege which applies regardless of whether litigation is anticipated.

8. Waiver.  Unlike the attorney-client privilege, it’s difficult to waive the work product privilege. Courts have held that intentionally sharing work product does not waive the work product privilege.  A party can waive the privilege, however, by disclosing it to an adversary directly or if the disclosure substantially increases the chances that the work product will get into the hands of an adversary.  Including the work product in a public pleading or other filing will waive the privilege as will – in most circumstances – producing work product to the government. Of course, failing to assert the privilege is another way to waive it.  Finally, like the attorney-client privilege, the work product privilege can be waived under the “crime fraud” exception.

9. Best Practices.  There are some tricky aspects to the work product privilege – especially the fickleness of the courts - you need to keep in mind.  Here are some best practices that will give you the best chance of maintaining it:

  • Properly label any document or materials you create in anticipation of litigation. Don’t forget to put the litigation hold in place.

  • Help the business with labeling and preparation.  If litigation is anticipated, spend some time with the key people and explain how privilege works – work product and attorney-client. 

  • If you’re going to share the work product with third-parties put in place a confidentiality agreement, joint defense agreement, common interest agreement or other agreement designed to ensure the materials are kept confidential and show that your interests are aligned.

  • If you are writing notes of an interview weave in your impressions, conclusions, theories, opinions, etc. Don’t write out long, verbatim quotes that make it look more like a transcript.  Alternatively, you can separate pure facts from your impressions, conclusions, etc. in the same document with the expectation that the “fact section” may not be privileged.

  • If appropriate, label documents for both attorney-client and work product privilege. 

  • Know how courts apply the work-product privilege in your jurisdiction. 


10. Resources.  I have come across and used a number of excellent resources about privileges generally and the work product privilege specifically.  If you want or need to go deeper, check out The Basics of Attorney-Client Privilege and Work Product Doctrine (2018) (Law Practice CLE materials).

*****

It is difficult to capture all the “ins and outs” and nuance of the work product privilege in a blog post like this. It’s a powerful tool and, in my opinion, deserves more attention from in-house counsel than it typically gets.  As in-house counsel, it is up to you to make the effort to ensure you understand and apply the privilege wherever possible.  It’s an asset of the company and you need to treat it like one.

If you have questions about this blog or need assistance with a litigation matter, please reach out to info@hilgersgraben.com.

 


About Hilgers Graben

Hilgers Graben is a nationwide litigation boutique specializing in commercial and intellectual property litigation and discovery counsel services. The firm uses geo-arbitrage and innovation to provide superior litigation and discovery counsel services while driving down costs for its clients.  On average, the firm is 50% less expensive than Big Law.  The HG EDGE discovery counsel team has pioneered unique techniques and process improvements to dramatically drive down the cost of discovery.

Topics: Work Product Privilege, Litigation