It protects certain documents, produced by a lawyer in anticipation of a dispute, which are not covered by any of the privileges referred to above. The question is whether the lawyer’s thoughts and mental observations, memorized in notes and other records and generated in preparation of litigation, can be discovered by the opponent.
In the crucial case of Hickman v. Taylor, 329 U.S. 495 (1946), the Supreme Court of the United States decided if the notes made by a lawyer questioning witnesses to the sinking of a ship could be identified. Apparently, the notices of the solicitor were vigorously pursued by the opposition as evidence for their argument. The lawyer’s notes were packed with his own impressions and opinions about the testimony of the victim. Obtaining such records by the opposition would have served the dual purpose of obtaining information revealed by the witnesses and gain insight into the lawyer’s thoughts on an integral part of his case. The court held that these notes, primarily because they included the thoughts and observations of a lawyer, could not be found:
“Historically, a lawyer is a court officer who is bound to work for the promotion of justice while diligently defending the legitimate interests of his clients. However, in carrying out his various duties, it is important for a lawyer to work with a certain degree of privacy, free from undue intervention by the opposing parties and their lawyers. Proper planning of a client’s case requires that he gather information, determine what he considers to be important from irrelevant evidence, prepare his legal arguments and plan his strategy without excessive and unwanted intervention. This is the historical and required way in which lawyers function within the context of our jurisprudence system to promote justice and protect the interests of their clients.”
The court was deeply concerned that the training of a lawyer and the tactics for litigation would be hindered if the lawyer realized that the opponent might send his personal notes on the case. Again, the notes were allegedly “permeated” with the opinions of the counsel and the experiences of the witnesses. At some stage, the discovery of the notes was equivalent to getting hold of the opposing coach’s playbook – if the opponent knows what the opposing coach is going to play in a given situation, the opponent has a great tactical advantage.
The Hickman Court was worried that, if the lawyer’s notes were discoverable, lawyers would not feel free to be innovative in drawing up plans for their clients’ cases, or that lawyers, recognizing that their personal notes could be accessed, would avoid keeping their thoughts and experiences in written records. That, at the end of the day, would not serve the client well, particularly in a long, complicated case with several witnesses and records to establish strategies around it.
The Hickman court argued that asking a lawyer to “testify what he remembers or what he felt fit to write down does not count as evidence; and using it for prosecution or corroborating purposes would make a lawyer much less an officer of the court and much more an ordinary witness. The quality of the profession will suffer.”
Courts also indicated that a group requesting a document covered by the doctrine would have a chance to obtain it if it showed a significant need and could not obtain the equivalent without undue hardship. The U.S. Supreme Court in Upjohn Co. v. United States, 449 U.S. 383 (1981), however, held that where an attorney’s work product is focused on testimonies’ oral comments (as in the Hickman scenario), the opponent pursuing the document must make a very clear demonstration of the need to resolve the defense of the labor product doctrine.
To sum up our analysis of the work product doctrine: unprivileged documents which enjoy protection during discovery or trial by application of the work product doctrine if the documents contain mental impressions of the lawyer and if the party seeking the documents cannot demonstrate a significant need or an inability to obtain equivalent information without undue hardship.