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The Attorney Work-product Doctrine Explained

Hickman v. Taylor

The work-product doctrine emerged in the landmark case of Hickman v. Taylor in which the U.S. Supreme Court ruled that the testimony of witnesses collected by a lawyer before the trial was confidential and thereby shielded from discovery. The Court held that to allow otherwise would be contrary to the public policy underlying the orderly and just prosecution and protection of claims.

The court describes the work product as documents and other tangible items prepared in anticipation of litigation or trial. This very broad definition has been narrowed because judicial work over a continuous stream of litigation has resulted in a collection of rules and standards aimed at applying the doctrine with clarity and precision. These laws and principles are predicated on the initial interpretations of the court, which attribute the doctrine to legislative issues rather than to the legal definitions of privilege and relevance.



The primary policy goal of the work-product doctrine is to protect the efficient assistance of lawyers and those working to help prepare a case for trial. Maintaining the privacy of communications between the plaintiff, the counsel, and those involved in the planning of litigation—especially privacy in the development of legal theories, views, and strategies—the doctrine promotes the efficacy of legal assistance on which our adversarial justice system relies. However, the courts accept that, in order to achieve justice in the disposition of the case, the parties must be able to gain knowledge of the relevant facts by means of a liberal understanding of the rules of discovery. In order to satisfy these often divergent and contradictory policy requirements, the courts shall grant absolute or almost absolute protection to the work product, which encompasses the mental observations, assumptions, views and legal theories of the dispute, while at the same time enabling the discovery of other work product on the basis of considerable need and unreasonable hardship.

Thus, the courts differentiate between the “fact” and the “opinion” of the working product. “Fact” work product is accurate information relating to the dispute and is prepared or obtained in conjunction with the dispute. “Opinion” work product consists of a lawyer’s mental observations, assumptions, views or ideas related to litigation. The rule then goes on to provide that, with regard to the mental observations, assumptions, opinions or legal theories of an attorney (an opinion work product), “the court shall protect against disclosure.” The degree of protection afforded to each type of work product distinguishes between them. Physical work product can be observable on proof of need and unfair suffering, but opinion work product has far greater security. While the Florida courts have not finally determined if the opinion labor product is completely privileged, some federal courts have decided that it is, while others have decided that it is only entitled to special protection. It is at least clear that such a work product can not be discovered solely on the basis of a demonstration of considerable need and undue hardship and is absolutely, or almost entirely, privileged. The primary aim of this enhanced standard of protection for opinion work product is to protect the lawyers’ significant privacy interests by not revealing it and ensuring that it is not revealed.



In order to fall within the limits of the work-product privilege, records and tangible items must be prepared in anticipation of litigation or for trial. The Courts understand that it is always difficult to evaluate what is and what is not planned in the sense of litigation. In certain cases, plain common sense is the strongest divisor, but even this typically reliable standard yields contradictory results in places such as this where “black turns to gray before it becomes white.”

Most courts conclude that documents prepared and information collected in the normal and ordinary course of business or in compliance with public requirements not relevant to litigation are not eligible for defense. These courts typically support the idea that the mere possibility of litigation would not be adequate to shield materials and knowledge from discovery. Consequently, inquiries and incident reports following an accident do not count as work items if they are required to be part of the ordinary course of business. For example, the early stages of the insurance company’s claim investigation can be considered to be part of the ordinary course of business in order to decide whether to honor or reject the claim and whether the insurer may pursue subrogation against the negligent party. In several of these cases, the courts will rely on the testimony of those who have either performed an investigation or written a report pointing out the reasons for the investigation.

However, in other cases concerning preliminary inquiries and incident reports, some courts take a wider view of the “anticipation of litigation” standard and hold that “even investigative material is privileged if it is compiled in response to an event that could reasonably be expected to form the basis of a claim.” The Court observed that the testimony of witnesses taken in the course of an internal investigation of fraud could be privileged even though the case was neither pending nor threatened as long as there was a likelihood that the case might arise.

Some appellate courts have advised the courts to include findings of fact in their rulings on this subject. In some cases where the order of the court does not include sufficient findings of fact, in particular where the record of the trial is scarce, the appellate courts have merely issued certiorari, quashed the order of the court, and returned the case back to the court for further proceedings. In view of the contradictory positions taken by many appellate courts and the difficulty inherent in deciding whether the documents are prepared in advance of the conflict, it is strongly recommended that this request be complied with in order to enable the appellate courts to address the matter more precisely.

The right explicitly applies to documents and tangible objects prepared by or for another party. The work-product protection, while originally intended to protect the work product of lawyers, has been expanded to documents and information prepared and collected “by or for another party or representative of that party, including its attorney, consultant, security officer, indemnifier, insurer or agent. In such cases, the courts have stated that they would allow a non-party to exercise the right. This condition typically happens when the person seeking the right is not a party to the conflict because the person receives some legal protection from prosecution or liability. For example, the person may be an employer and receive protection under the workers’ compensation rules, may have some other legitimate affirmative defense, or the person’s responsibility may be difficult to prove. The courts have ruled that, if a person closely linked to the events surrounding the dispute is not made a party for these purposes, and the person still gathers materials and information in preparation of the dispute, the right of the work-product can still be claimed if the party tries to acquire information or data from the person concerned.

The right of the work-product does not end with the termination of the case in which it has been successfully claimed. The primary explanation given for the longevity of the privilege is that it is intended to secure interrelated interests. Not only does the privilege protect the rights of a person in seeking full and efficient legal representation, it also aims to protect the peculiar interests of the lawyer in offering such representation without fear of privacy being breached and the views and opinions of the lawyer exposed through the discovery process. Therefore, in order to help minimize the risk that the lawyer’s opinion work product will be released, even in subsequent unrelated litigation, the courts may allow both the client and the client’s attorney to claim the privilege.