Let’s Stop Saying “Attorney Work Product Rule,” Okay?

Originally published by Howard Boyd.

I have noticed several references in recent literature, memoranda, and legal journals to the “attorney work product rule.” It is beyond me why so many otherwise bright and knowledgeable people continue to refer to the Work Product Doctrine in this fashion. The Doctrine is, of course, not limited to attorneys, and in fact, really has nothing to do with attorneys specifically except that attorneys are one of the many representatives of a party whose work product and thoughts about litigation are protected.  Obviously, attorneys are the most common representatives to provide or prepare documents and tangible things that are prepared in anticipation of litigation or for trial, but the rule expressly applies to a party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). It further provides absolute protection against discovery of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.

A surprising number of attorneys apparently incorrectly believe that the Doctrine does not apply unless, like the attorney-client privilege, a lawyer is somehow involved in the preparation of the materials in question.  Nothing could be further from the truth, and as a result, the Work Product Doctrine is much broader than the attorney-client privilege, and generally, much easier to sustain in discovery disputes.  As defense lawyers, we certainly do not want to do anything to incorrectly limit the scope and effect of the Work Product Doctrine, and all of us need to strive to broadly interpret the protection rather than narrowing it. Since defendants generally use lawyers and other representatives to analyze potential or threatened litigation, and plaintiffs less so (except in business and commercial litigation between corporate entities) the plaintiff’s bar generally attacks and tries to limit the Work Product Doctrine just as it has attacked the attorney-client privilege down through the years. These attacks need to be fiercely resisted and our courts encouraged to apply the Work Product Doctrine broadly to protect the doctrine to prevent what the U.S. Supreme Court correctly noted in Hickman v. Taylor as practicing law “on the wits of your adversary.”  Parties have no right to, and should not even request, disclosure of what the other side thinks about the lawsuit or the merits of the case regardless of which representative of the party expressed those views.

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