10.08. Work Product Doctrine

The second doctrine of confidentiality is based in procedure: the work product doctrine. You studied this doctrine in civil procedure, and we will not spend much time on it. The common law work product doctrine was first recognized by the U.S. Supreme Court in the 1947 case Taylor v. Hickman^[1], and then codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure.

In thinking about Hickman, you have to keep in mind the context. The Federal Rules of Civil Procedure were adopted in 1937. The rules were in response to an environment where there was very little, if any, pretrial discovery. Here’s how one author described it in 1932: “False and fictitious causes and defenses thrive under a system of concealment and secrecy in the preliminary stages of litigation followed by surprise and confusion at the trial . . . .”^[2] The rules were intended to remedy this state of affairs by requiring disclosure of relevant and non-privileged evidence prior to trial through discovery (interrogatories, request for production, and request for admissions). That’s straight forward enough.

But consider the situation presented in Hickman. A tugboat sinks and a number of people are killed. The tugboat owner anticipates that it will be sued by the survivors of those killed and retains a lawyer to assist in defending any potential suits. As part of preparing for the defense, the lawyer interviews witnesses to the accident. After suit is filed, the plaintiffs seek to force the tugboat owner to turn over the witness statements in discovery. The lawyer asserts that the witness statements are “privileged.” But, what is the privilege? It’s not the attorney-client privilege (do you see why?). And in fact, the district court denies that there was any basis for refusing to turn over the witness statements, ordered their disclosure, and when the lawyers refused, held them in contempt and ordered them imprisoned until they complied.

On appeal, the lawyers again asserted that there should be protection for this type of information that a lawyer obtains in anticipation of or in the course of litigation. The plaintiffs argued that withholding such information would defeat the very purpose of the discovery rules, which were to “enable the parties to discover the true facts and to compel their disclosure wherever they may be found” and to allow the lawyer to withhold this information would cause lawsuits to “become[] more of a battle of deception than a search for truth.”

The Supreme Court sided with the defendants – finding that there is information which is both relevant and not privileged – but it is still not subject to discovery. The court calls this information attorney work product. Here is the court’s rationale:

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 necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways – aptly through roughly termed . . . as the ‘Work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore 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.^[3]

The Hickman case established the common law work product doctrine. It was only after Hickman that a work product doctrine rule was adopted in the Rules of Civil Procedure. The current work product doctrine is found in Rule 26(b)(3).

Rule 26. Duty to Disclose; General Provisions Governing Discovery

(a) Required Disclosures. ****

(b) Discovery Scope and Limits.

     (1) Scope in General. ****

     (2) Limitations on Frequency and Extent. ****

     (3) Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they were otherwise discoverable under Rule 26(b)(1) [they are relevant and not privileged]; 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.

[1] Hickman v. Taylor, 329 U.S. 495 (1947).

[2] Edson R. Sunderland, Forward to George Ragland, Jr., Discovery Before Trial at iii (1932) (quoted in Stephen N. Subrin, “Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules,” 39 B.C.L. Rev. 691 (1998).

[3] Hickman v. Taylor, 329 U.S. 495, 510-11 (1947).