Issue: April, 2006
Author: John M. Burman
Printable Version (PDF)
Ethically Speaking - The Work Product Doctrine
The discussion about the attorney-client privilege which appeared in the last two issues of the WYOMING LAWYER ended with the observation that: ‘[m]uch of attorneys’ work does not involve communications with clients. It is not, therefore, protected by the attorney-client privilege. Rather, it falls under the work product doctrine. That doctrine will be the subject of the next column.” As promised, here is that column.
When the Rules of Civil Procedure were amended to permit far-ranging discovery, a problem arose. While communications between a client and the client’s lawyer were protected from discovery by the attorney-client privilege, a lawyer’s mental impressions, conclusions, opinions, and legal theories were not. The issue was whether some other privilege protected them.
The issue came to the fore in the case of Hickman v. Taylor, in which one party attempted to discover the notes of the attorney for the other party. The case ultimately went to the United States Supreme Court, where the issue was “whether any of those [discovery] devices may be used to inquire into materials collected by an adverse party's counsel in the course of preparation for possible litigation.”
The Supreme Court agreed that “the memoranda, statements and mental impressions in issue in this case fall outside the scope of the attorney-client privilege and hence are not protected from discovery on that basis.” That did not end the inquiry, however, as the Court was clearly concerned that the disputed discovery was “an attempt to secure the production of written statements and mental impressions contained in the files and the mind of the attorney . . . without any showing of necessity or any indication or claim that denial of such production would unduly prejudice” the requesting party. Such an attempt, said the Court, “falls outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims.” Accordingly, the Court denied the requested discovery, holding that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” The holding was limited to what the Court referred to as the “work product of the lawyer,” which was described as “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . .”
The work product doctrine is now part of the Rules of Civil Procedure (Rule 26(b)(3)) and the Rules of Criminal Procedure (Rule 16(a)(2) & (b)(2)). It protects from discovery those documents and tangible things prepared in anticipation of litigation by another party or another party’s representative unless the party seeking discovery can show a substantial need for the materials and the inability to reproduce the material without undue hardship.
The purpose of the doctrine was first announced in Hickman v. Taylor, and it remains the same. To ensure the integrity of the adversarial system by recognizing "that it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”
The Work Product Doctrine vs. The Attorney-Client Privilege
The work product doctrine is distinct from the attorney-client privilege in two important ways. First, the work product doctrine and the attorney-client privilege protect different aspects of an attorney’s work. The former protects the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party . . .” The latter protects communications between a lawyer and the lawyer’s client. Second, some courts have held that the work product privilege is that of the attorney, not of the client, because it is the attorney’s privacy being protected. Others have held that the privilege “was created for the protection of the client as well as the attorney,” and belongs, therefore, to both. The attorney-client privilege, by contrast, belongs to the client, not the attorney.
The question of to whom the work product privilege belongs is important only to the extent that it affects who may waive it. If the privilege is the lawyer’s, the lawyer, at least arguably, has the authority to waive it. If it is the client’s, either jointly or solely, waiver must include the client.
The better view is that the work product doctrine was created and is now codified in the rules to protect both lawyers and clients. While it is certainly true that it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel, that is true because lawyers cannot represent their clients competently without that privacy. Since the client’s interests lie at the forefront of everything lawyers do, their interests should always take priority. For that reason, the work product doctrine is not simply the lawyer’s. It belongs to both the lawyer and the client. Accordingly, a lawyer acting alone should not be able to waive it. That should be done only after the client makes an informed decision to join in the waiver.
The Scope of the Work Product Doctrine
“The work product doctrine provides qualified protection from disclosure for documents and other tangible things ‘prepared in anticipation of litigation or for trial.’” Unless the doctrine is “overcome, it bars discovery ‘where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation.’” The contours of the doctrine’s “qualified privilege” depend on both the type of information sought and who prepared it. The answers to those questions generally dictate whether the information is discoverable. As the following discussion shows, answering that question is often not easy.
Rule 26 of the Wyoming Rules of Civil Procedure (and Rule 26 of the Federal Rules) classifies work product information in two ways. First, that which is discoverable, and that which is not. Second, the rule distinguishes between the work product of attorneys and that of experts.
The threshold question for assertion of the work product doctrine, regardless of the type of information sought or who prepared it, is whether the material was “prepared in anticipation of litigation,” or, in the words of the rule, whether the information sought involves “trial preparation materials.” If so, it falls under the work product doctrine. If not, it does not, and is discoverable unless otherwise privileged, so long as it is either relevant or is “reasonably calculated” to lead to admissible evidence.
Non-Discoverable vs. Discoverable Materials
The work product doctrine provides absolute protection to some materials, making them non-discoverable under any circumstances. That absolute protection is contained in Rule 26 but is difficult to find.
Rule 26(b)(3) is entitled “Trial Preparation: Materials.” It begins by setting forth the conditions under which some such materials are discoverable. In the midst of discussing how and when to permit discovery, the rule creates an exception to discovery. That exception is contained in a sentence located approximately half-way through subparagraph (b)(3): “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.” That’s it. An attorney’s “mental impressions, conclusions, opinions, or legal theories” are not discoverable, at least under the plain language of the rule. As discussed below, however, some courts have read a limited exception into that language.
Having carved out an apparently absolute exception for certain materials, the questions become what may be discovered, and under what circumstances. The rule answers both questions.
First, any material prepared in anticipation of litigation, other than the “mental impressions, conclusions, opinions, or legal theories of an attorney or other representative,” is potentially discoverable. The question is whether the party seeking discovery can make the requisite showing.
Second, the party seeking discovery must show two things: (1) that the party “has substantial need of the materials in the preparation of the party's case;” and (2) “that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” The question for a court considering such a request is how to analyze that request. The Sixth Circuit has developed a four-step, burden shifting process to evaluate whether material is discoverable. The process makes sense.
First, the party requesting discovery (the seeker) must show that the materials are relevant. Second, if that showing is made, the burden shifts to the objecting party (the objector) to show it was prepared “in anticipation of litigation.” If that showing is made, the burden shifts back to the seeker to show that the seeker has both substantial need for the material and is unable to obtain it without undue hardship. Whether a party has substantial need for the document requires the court to consider the nature and relevance of the documents and the ability of counsel to obtain the facts from other sources. Additionally, undue hardship requires a showing of more than inconvenience or expense. Finally, the court reviews the material to eliminate any mental impressions that could be transferred.
The Wyoming Supreme Court addressed the issue of whether a trial court had erred in denying discovery of reports which had either been made by a physician as an insured to his insurance carrier or had been prepared by the physician and furnished to a medical review panel investigating an alleged claim of medical malpractice. The court affirmed the trial court’s denial of discovery because of:
[T]he work product concept, i.e., we do not find an abuse of discretion by the trial court in its determination that appellant-plaintiff failed to show (1) a substantial need for the statements made by appellee-defendant to his insurance company or for the reports made by him to a medical review panel, and (2) that she was unable without undue hardship to obtain a substantial equivalent thereof by other means, as is required by Rule 26(b)(3), W.R.C.P.
Attorneys v. Experts
Rule 26 treats attorneys and experts differently. As discussed above, attorneys’ trial preparation materials are divided into two categories, those materials which are non-discoverable and those which are. Expert trial preparation materials are treated differently, depending on whether the expert is expected to testify at trial, or not.
If an expert is expected to testify at trial, the opposing party has two avenues through which to gain information. First, through interrogatories, the party seeking discovery about an expert may require the other party to “state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Next, if more information is desired, the party seeking discovery “may depose any person who has been identified as an expert whose opinions may be presented at trial.” If an expert is deposed, “the party seeking discovery [must] pay the expert a reasonable fee,” unless “manifest injustice would result.”
If an expert has been retained by a party, but is not expected to testify at trial, the rules are very different. The other party may obtain discovery “only as provided in Rule 35(b) [reports of a court-appointed examiner] or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.”
What materials are covered by the work-product doctrine?
Generally, the work product doctrine protects documents and tangible things, such as an attorney’s statements, memoranda, correspondence, briefs, and mental impressions. A simple collection of evidence, however, “without any creative or analytic input by an attorney or his agent, does not qualify as work product.”
The 1970 amendment to federal rule 26(b)(3) added language to include non-lawyers, as well as lawyers, under the work product doctrine. That language, “including the other party's attorney, consultant, surety, indemnitor, insurer, or agent,” is now part of the Wyoming rule as well. With the addition of that language, many courts have concluded that there is no distinction between lawyer and non-lawyer work product. Thus, under insurance relationships, for example, Washington courts look to the expectations of the parties under contract to determine which documents are protected, protecting those one would objectively expect to be transferred to the attorney for a particular case. Most courts, however, use the same analysis for insurance companies as they would for attorney work product.
Many courts have held that statements of witnesses taken by an attorney are protected work product. Some, however, have rejected that protection. In the same vein, when a company hires an attorney to conduct an internal investigation, courts tend to hold that “[t]he investigation’s factual findings and legal conclusions fall within the compass of the work product doctrine.” Others have held that the company has an economic interest in conducting such an investigation and thus "it hardly needs the additional protection of a shield of privilege to investigate its own employees’ alleged derelictions.” That reasoning, however, is only applicable when the company is the party against whom the wrongful conduct is directed. Refusing to protect internal investigations will discourage examination of allegations where the company is not being directly harmed.
What does prepared “in anticipation of litigation” mean?
The Wyoming Supreme Court has not addressed what the phrase “in anticipation of litigation” means. Numerous other courts have, arriving at different formulations. The differences in how the federal circuit courts interpret “in anticipation of litigation” illustrate well the different approaches that courts take.
Courts agree that the party objecting to discovery must show that the documents were prepared with an eye toward litigation. The dispute is over how much of an eye, or at least how to articulate a meaningful test to determine the applicability of the doctrine.
The Seventh Circuit has said that the “remote prospect of litigation” is insufficient to meet the objector’s burden; the objector must show, instead, that the materials were prepared “because of” litigation or that “some articulable claim, likely to lead to litigation has arisen.” A variation of the “because of” test is to ask whether the document would have been created in "substantially similar form” regardless of the litigation. The Fourth Circuit looks to the "driving force” behind the creation of the documents. The Fifth Circuit takes a similar approach to that of the Fourth. It seeks the “primary motivating purpose” behind the document’s creation. The D.C. Circuit asks whether the documents were prepared in anticipation of litigation as opposed to “in the ordinary course of business.” Thus far, the Tenth Circuit has not provided any clarification of the “in anticipation of” element.
The Seventh Circuit’s test makes sense. As the work product doctrine is designed to protect “trial preparation materials,” a simple showing of the “remote prospect of litigation” should be insufficient. Something more should be required. Requiring the objector to show, instead, that the materials were prepared “because of” litigation or that “some articulable claim, likely to lead to litigation has arisen,” fulfils the purpose of the doctrine.
While it is clear that an objecting party must show more than “a remote prospect of future litigation,” it is not clear how much more must be shown, i.e., at what stage must the litigation be. Under one view, if the prospect of litigation is identifiable, then the fact that it is still contingent is unimportant. The United States District Court for the District of Kansas requires more, holding that the threat must be "real and imminent.” The countervailing view is that “[t]he privilege extends to documents prepared in anticipation of foreseeable litigation, even if no specific claim is contemplated.” Under the “foreseeable litigation” test there must be specific wrongdoing and an investigation must represent an effort to obtain evidence regarding that wrongdoing.
The New Jersey Supreme Court evaluates the issue from the perspective of the attorney, holding that a prudent party anticipates litigation before any formal commencement, and the test, therefore, is whether there is an “objectively reasonable basis for anticipating litigation.” The test is limited to material not prepared in the ordinary course of business. This test hurts insurance companies because “a substantial part of an insurance company’s business is to investigate claims made by an insured against the company” and thus its investigations are discoverable unless the company can show that reports were compiled for use in specific litigation.
The Third Circuit also considers the attorney as the starting point for analyzing “in anticipation of litigation.” “Only by looking to the state of mind of the party preparing the document” can one determine whether the material was prepared in anticipation of litigation. The analysis is limited, however, by the requirement that the state of mind be objectively reasonable.
The New Jersey Supreme Court’s formulation seems apt. A reasonable party does anticipate litigation, and should not be penalized for doing so. The question should be whether there was an “objectively reasonable basis for anticipating litigation.” If so, the protection of the work product doctrine should apply. If not, it should not.
The Discoverability of Attorneys’ Opinions
While both Wyoming Rule of Civil Procedure 2663 and its federal counterpart seem to provide absolute protection for an attorney’s opinions, some courts have created exceptions to that apparently inviolate protection. Two federal district courts in New York, for example, have held that an attorney’s opinion work product may be discoverable upon a “highly persuasive showing of need.” The court in the southern district of New York cited the court in the eastern district, holding that opinion (or “core”) work product could only be discoverable upon satisfaction of the “highly persuasive test,” but left out the eastern district’s statement that opinion work product is “virtually sacrosanct.” That idea came from two Second Circuit cases that the court in the eastern district cited.
In United States v. Adlman, the Second Circuit refused to decide whether opinion work product could ever be discovered. Two years later, the Second Circuit eliminated some of the uncertainty created by Adlman, but used the same words: “at a minimum [opinion work product] is to be protected unless a highly persuasive showing [of need] is made.”
The New York district courts are not alone. The Ninth Circuit has held that “opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling.” Similarly, the D.C. Circuit has held that a showing of “extraordinary justification” was sufficient to lift the protection of opinion work product.
The Fourth Circuit has gone the other direction, stating that “no showing of relevance, substantial need or undue hardship should justify compelled disclosure of an attorney’s mental impressions, conclusions, opinions or legal theories.” The Eighth Circuit has gone almost as far, holding that "opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.” That court chose not to use a blanket rejection of discoverability of opinion work product, citing a crime-fraud situation. At least one district court in the Eighth Circuit has ruled that such protection is absolute.
The language of the rule leads ineluctably to the conclusion that the Fourth Circuit is correct. The protection for an attorney’s opinions should be absolute. “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.” The language is clear. The court need not, and should not, create exceptions where none exist.
The work product doctrine created by the Rules of Civil Procedure does not, obviously, apply to criminal matters. A similar doctrine exists, however, in criminal law.
Discovery in criminal matters is governed by nearly identical provisions of the Federal and Wyoming Rules of Criminal Procedure. Rule 16 of both sets of rules is entitled “Discovery and Inspection.” Paragraph (a) governs disclosure by the government, whether federal or state. Subparagraph (2) is “Information Not Subject to Discovery.” The federal rule says this rule (rule 16) “does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government . . .” The Wyoming rules contain the same language, except that the term “the state” replaces “the government.” A reciprocal provision of both rules regulates disclosure by the defendant. Once again, the federal rule “does not authorize discovery or inspection of:. . .reports, memoranda, or other documents made by the defendant, or the defendant's attorney or agent.” The Wyoming rule contains similar language.
The applicability of the work product doctrine to criminal matters has been addressed by the Wyoming Supreme Court. In Alexander v. State, the court addressed whether the trial court had erred in denying the defendant access to “the work product behind [the presentence investigatory] report . . . .” On review, the supreme court said “”[w]e agree” with the district court’s holding that “it would be a dangerous precedent to open up the work product that goes behind that report.”
The Supreme Court was right. “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” That idea of protecting the “work product” of a lawyer is now enshrined in both the Rules of Civil Procedure (Rule 26(b)), and the Rules of Criminal Procedure (Rule 16). Never-the-less, important questions remain.
Perhaps most importantly, the phrase “in anticipation of litigation” remains unanswered in Wyoming. Given the purpose of the rule, the approach of the Seventh Circuit should be adopted. That is, a simple showing of the “remote prospect of litigation” should be insufficient. Something more should be required. The party objecting to discovery should have to show that the materials were prepared “because of” litigation or that “some articulable claim, likely to lead to litigation” has arisen.” That approach should be refined by adopting the holding of the New Jersey Supreme Court that litigation need not be pending, but the question should be whether there is “an objectively reasonable basis for anticipating litigation.”
Finally, the Wyoming Supreme Court should not create an exception to the clear language of the rules. The “mental impressions, conclusions, opinions, or legal theories” of an attorney should not be discoverable, ever. That should be the rule whether the proceeding is a civil or a criminal one.
Copyright © 2006 – Wyoming State Bar