One problem that often occurs for lawyers is who owns documents generated during the course of the representation and to what degree those documents must be released. If a representation ends and the client demands a copy of the “file,” what documents are included in that request? If a lawyer receives a subpoena for documents related to a former client, must all documents created by a lawyer be produced?
With regard to the client’s or new counsel’s demands, the issue is fairly clear when only pleadings, briefs and correspondence are requested. Complications can arise, however, if the client is also seeking more non-public legal records.
While the client file normally contains these documents, the client can also request sketches or drafts, internal correspondence, memoranda, legal or other research, or even handwritten notes from the attorney. Depending on the jurisdiction, this form of request can require the lawyer or firm to consider whether and to what degree the client is entitled to records that constitute an “attorney” work product.
It is useful to consider the basic parameters of the work product doctrine in determining demands for the processing of work-product products, whether by clients or third parties. Since the introduction of the doctrine in Hickman v. Taylor’s landmark case of the Supreme Court, labor product doctrine has evolved at both the federal and state levels.
The following are some of the steps that many attorneys include in reviewing demands for work-product materials.
Categorize the working commodity
Generally, there are two distinct types of a lawyer’s work product: “general work product” and “opinion work product.”
General work product typically consists of papers and tangible items that are prepared in anticipation of a confrontation or for prosecution by the party or the party’s members. Opinion work product contains only those contentious or trial planning materials that include the mental observations, assumptions, views or legal theories of the party’s counsel or other representative in connection with the conflict.
This distinction is important because of the different privilege status given to each of them. General work product materials are usually subject only to a qualified privilege, which means that the court may order them to be revealed if the requesting party meets certain conditions, including that the requesting party has a “substantial need” for the materials and is unable to obtain a substantial equivalent of the materials through other means.
On the other hand, the courts have found that the opinion labor product is entitled to an absolute right and can, under certain cases, be protected from disclosure.
But the client’s request for the output of the client file is not as plain as that. The majority of jurisdictions, including Georgia, have ruled that a document produced by a lawyer belongs to the client who retained it. As such, clients can argue that they are entitled to any document produced by the lawyer during the representation.
Georgia’s cases have acknowledged such exceptions to this rule: if the lawyer may show reasonable reason to shield the records from disclosure, such as if the disclosure may infringe the obligation of the lawyer to a third party, if the document assesses the particular client, if the relationship between the client and the lawyer becomes an adversarial one, or if the lawyer’s preliminary impressions are tentative.
Identify who is making a job product
Determining whether such products are a working product typically requires more than just a study of the quality of the materials (and whether they are general or opinion work product). It also includes a study of who developed it.
Depending on the purpose and extent of the representation, several different individuals could have a role to play in the development of work product materials. The most evident is the client and the lawyer who represents her. However, other persons who are associated with the client and the counsel, and those who are retained in connection with the representation, can produce both a general or opinion work product that is subject to some degree of defense.
The investigation is more difficult when it comes to experts. For example, according to the Federal Rules, the response is whether the expert will testify at trial or whether the expert will be retained as a consultant. If the former is the case, the work-product doctrine does not protect the evidence established or views held by such experts. After all, the object of retaining a testifying expert is to make use of his or her opinions and, therefore, of the evidence used to shape those opinions at the trial.
As far as non-testing experts are concerned, their identity and the facts and views they hold are usually covered and need not be revealed.
Be careful not to waive an unintended waiver
Job product doctrine typically safeguards the interests of both the customer and the lawyer. Diligence can enable a lawyer to know the rules of jurisdiction prior to the disclosure or creation of work product documents. After the records have been made, it may be difficult to “put the toothpaste back in the tube.”
While requests for work product documentation from a client file are becoming more popular, following these tips will help to minimize the risks that could arise from attempting to comply with those requests.