• The Work Product Rule
  • April 29, 2003 | Author: Ralph F. Holmes
  • Law Firm: McLane, Graf, Raulerson & Middleton Professional Association - Manchester Office
  • In identical language, Superior Court Rule 35b(2) and Rule 26(b)(2) of the Federal Rules of Civil Procedure set forth the protection afforded litigation work product. Although the basic aspects of the work product exception to discovery are commonly understood, the doctrine's scope and limits are not.

    I. What is Covered By the Work Product Rule?

    Skip Topple, the operator of a local bungee cord jumping business, comes in to see you about a tragic accident that happened when the bungee cord snapped during a jump last week. At the meeting, Topple gives you photographs of his crane and statements from his employees he took after the family of the deceased threatened to sue. The photographs were taken from the worst possible angle, making the crane appear taller than it is, and the statements graphically describe the fall and the agony of the jumper's final moments. Suit is brought and opposing counsel discovers the existence of these items and requests that they be produced. Their production will make the defense of this difficult case even tougher. What do you do?

    No discovery need be given because these items are protected from production under the work product rule which sharply limits a party's ability to discover "documents and tangible things . . . prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer or agent) . . .." The rule thus defines information subject to work product protection as having three characteristics. First, it must be a document or a tangible thing. The photos and the statements clearly qualify. Second, it must have been prepared in anticipation of litigation. For this requirement to be met, "the probability of litigation must be substantial and the commencement of litigation imminent. Materials which are prepared in the ordinary course of business do not fall within the Work Product exception." Here, litigation was threatened immediately before and quickly followed the taking of the photos and the statements. Third, the item must have been prepared by the party or his representative, including but not limited to, his attorney. Thus, the work product rule covers Topple's photos and statements even though counsel did not have a hand in their preparation.

    Although the doctrine covers materials prepared by non-counsel, its historical development concerned and its main application today is the protection of attorney work product. The protection of attorney work product stems from the recognition that "[o]ur adversarial system of justice cannot function properly unless an attorney is given a zone of privacy within which to prepare the client's case and plan strategy without undue interference." As stated by the Supreme Court in Hickman v. Taylor, without this zone of privacy:

    Much of what is now put down in writing would remain unwritten. An attorney's thoughts, hereto inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.

    Although the genesis and practical thrust of the rule is the protection of attorney work product, counsel must be mindful that its scope may include materials, such as the photos and statements above, prepared without any counsel involvement.

    II. When Is Discovery of Work Product Allowed?

    You are defending a local bank in a massive lender liability suit. To prepare for the loan officer's deposition, you cull through tens of thousands of pages of documents produced in discovery to identify those you believe to be most important and then review them with the loan officer. At the deposition, the loan officer testifies that he has reviewed documents you provided. Opposing counsel requests that they be produced, you refuse, and she then files a Motion to Compel Production. How will the court rule?

    The weight of authority supports protection of the documents' identities. While the documents selected for review by the loan officer are not work product, the selection process clearly is, and the compelled identification of these documents would force counsel to disclose information that might reveal his reasoning in the case. The rules provide that work product information is discoverable "only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means." Opposing counsel might argue that she is entitled to the production under this rule because she needs the documents to understand the extent of the loan officer's knowledge of the case and the identification of the documents is the only way this important goal can be achieved. Even if the court accepts this argument, it may properly refuse to compel production under the following language in the rules:

    In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

    This important qualification points up the distinction between "ordinary work product," consisting of witness statements and other purely factual materials, and "opinion work product" expressing the theories of counsel. "Opinion work product includes such items as an attorney's legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case, and the inferences he draws from interviews of witnesses." The courts give opinion work product much greater protection.

    Courts typically afford ordinary work product only a qualified immunity, subject to a showing of substantial need and undue hardship, while requiring a hardier showing to justify the production of opinion work product. Indeed, some courts have seemingly concluded that the protection for certain types of opinion work product is ironclad. The Supreme Court, however, has made no commitment concerning the correct standard for revelation of opinion work product.

    A number of courts have found the grouping of otherwise discoverable documents by counsel to be opinion work product and exempt from discovery. As stated by the court in James Julian, Inc. v. Raytheon, Co.:

    In selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his understanding of the case. Indeed, in a case such as this, involving extensive document discovery, the process of selection and distillation is often more critical than pure legal research. There can be no doubt that at least in the first instance the binders [of selected documents] were entitled to protection as work product.

    Sporck v. Peil is on-point with our example of counsel selected documents used for witness preparation. In that case

    [P]rior to the deposition, counsel for defendants had prepared [defendant] Sporck for his expected week-long deposition by showing him an unknown quantity of the numerous documents produced by defendants in response to plaintiff's discovery requests. Defense counsel selected and compiled these documents in a folder in Philadelphia, and transported them to California solely for the deposition. According to defense counsel, the selected documents represented, as a group, counsel's legal opinion as to the evidence relevant both to the allegations in the case and the possible legal defenses.

    Defense counsel refused to produce the documents on the grounds that the select grouping of documents was opinion work product and exempt from discovery. The court agreed:

    We believe that the selection and compilation of documents by counsel in this case in preparation for pretrial discovery falls within the highly-protected category of opinion work product.

    The first circuit has not directly ruled on this issue, but it has indicated that it will allow the identity of counsel selected documents to be compelled in at least one context. In In Re San Juan Dupont Plaza Hotel Fire Litigation, the court considered an order that required counsel to identify, five days beforehand, any exhibits to be used at any deposition in the case. The case was colossal, involving upwards of 2,000 parties, more than 2,000,000 documents, and an anticipated 2,000 depositions. To help tame this monster, the magistrate issued a forty-five page case management order that included this document identification protocol.

    On appeal, the court first noted that, although the work product rule was implicated, this was a dispute not over discovery and whether the opposition had a substantial need for the prior identification of exhibits, but over the trial court's case management authority and whether the need for efficient administration of justice could be considered in deciding whether to require disclosure of work product. The court held that it could. "There is no reason, then why the crying need for efficient use of scarce judicial resources cannot - and should not - be factored into the equation. We hold that it must."

    The court then held that "only ordinary work product is involved in the identification protocol" on two grounds. First, the court indicated that it will construe opinion work product narrowly. Citing the lone dissent in Sporck v. Peil, the court stated:

    [N]ot every item which may reveal some inkling of a lawyer's mental impression, conclusions, or opinions, or legal theories is protected as opinion work product. Were the doctrine to sweep so massively, the exception would hungrily swallow up the rule. Whatever heightened protection may be conferred upon opinion work product, that level of protection is not triggered unless disclosure creates a real, non-speculative danger of revealing the lawyer's thoughts.

    Second, the court in a rather extensive discussion noted that the selection by counsel of the documents to be used as deposition exhibits is not entitled to a special protection because, "despite the revelations they contain as to the attorney's thought processes, the lawyer has no justifiable expectation that the mental impressions revealed by the materials will remain private." Noting that other case management tools such as pretrial statements require counsel to reveal in advance witnesses to be called and exhibits to be used at trial, the court stated:

    [S]uch case management devices do not decide whether certain aspects of the attorney's thought processes will be disclosed, but simply determine when the disclosure will occur. In other words, they do little more than change the timing, expediting revelations which would ultimately be made during the normal course of pretrial proceedings or trial itself. Since these incursions into the attorney's mental impressions are inevitable, any violation of the zone of privacy is marginal, and the sturdier prophylaxis given to opinion work product is neither needed nor warranted.

    Finally, the court took pains to distinguish the case before it and Sporck which held that documents selected by counsel to prepare a client for his deposition were protected from discovery as opinion work product.

    Indeed, Sporck should be distinguished because, unlike in this case, the lawyer's selection process there was never designed to see the light of day; the exhibits had been selected not for use in examination of an adverse or neutral witness, but for a markedly more private purpose -- preparation of the attorney's own client. We believe the distinction is a critical one. And Sporck, which dealt with a classic one-on-one discovery dispute -- plaintiff's attempts to secure the results of defense counsel's document triage from a defendant during an adversary deposition -- is also distinguishable because it did not in any way concern the district court's case management powers.

    III. When Is the Protection Waived?

    Client Tammy Pilch was seriously injured when the airbag in her car burst in an accident. You have found counsel with similar product liability cases against the manufacturer and wish to exchange work product information, including reports of experts. Will this be a waiver of the privilege?

    Unlike the attorney-client privilege, the work product rule generally is not waived by disclosure of protected information to third parties.

    The work product privilege is very different from the attorney-client privilege. The attorney-client privilege exists to protect confidential communications and to protect the attorney-client relationship and is waived by disclosure of confidential communications to third parties. The work product privilege, however, does not exist to protect a confidential relationship but to promote the adversary system by safe-guarding the fruits of an attorney's trial preparations from the discovery attempts of an opponent. Therefore, the mere voluntary disclosure to a third person is insufficient in itself to waive the work product privilege.

    Disclosure of protected information to a witness, counsel for other parties in the same case, counsel with similar cases, and accounting auditors have been held not to constitute waivers of the protection. Even compelled disclosure in one court has been held not to waive the protection for a proceeding in a different court.

    When a party is compelled to disclose privileged work product and does so only after objecting and taking other reasonable steps to protect the privilege, one court's disregard of the privileged character of the material does not waive the privilege before another court.

    The one situation in which disclosure does result in a waiver occurs when disclosure is voluntarily made to an adversary because then the purpose of the privilege, namely protection of a party's "zone of privacy" from intrusion by the other side, has been vitiated.

    In Re Chrysler Motors Corp. Overnight Evaluation is illustrative. The case involved a class action suit in which the plaintiffs sought damages from Chrysler as a result of its disconnecting odometers on 60,000 new cars driven by its employees and then sold to the public. As part of the settlement, Chrysler agreed to produce for review by one of the plaintiffs' counsel a computer tape documenting the vehicles involved. The tape had been prepared under the management of Chrysler's counsel and was produced solely to allow plaintiffs' counsel to conduct a due diligence review and was produced under a written confidentiality agreement. The government in a related criminal case then sought production of the tape contending that the privilege had been waived. The court agreed, stating:

    We agree with the district court that Chrysler waived any work product protection by voluntarily disclosing the computer tape to its adversaries, the class action plaintiffs, during the due diligence phase of the settlement negotiations. 'Disclosure to an adversary waived the work product protection as to items actually disclosed, even where disclosure occurs in settlement.' . . . [N]or does the agreement between Chrysler and co-liaison counsel for the class action plaintiffs not to disclose the computer tape to third parties change the fact that the computer tape has not been kept confidential.

    Thus, any voluntary disclosure of work product information to a litigation adversary may be held to waive the privilege.

    Finally, waiver may occur if the work product information has been obtained through direct participation or acquiescence in unethical conduct, such as the clandestinely taping of witness interviews.