Attorneys collect evidence in the early phases of litigation in an effort to determine the strengths and weaknesses of their case. If performed carefully, under the attorney work product doctrine in both California and federal courts, this procedure preserves the fruits of this labor from disclosure. In a confrontation, the work product doctrine encourages adequate planning on both sides. This safety is not absolute, however. Misinterpreting the criteria of the doctrine of the work product can lead to an inadvertent waiver of the security of the work product. Therefore, recognizing how the work product doctrine operates in state and federal courts in California is critically necessary. This article discusses the various approaches in the California and federal system to the work product doctrine, with special attention given to the inadvertent waiver of protection by disclosure by third parties.
Via the Discovery Act, California offers attorney work product confidentiality and it contains two forms of protection. 2018.018-2018.080. § CCP § In particular, CCP § 2018.030 distinguishes between the protection of absolute and conditional work items afforded to lawyers. CCP § 2018.030(a); Nacht & Lewis Architects, Inc. v. Supreme Court (1996) 47 Cal.App.4th 214. Absolute protection is granted to “[a]ny writing that reflects the impressions, conclusions, opinions, or legal research or theories of an attorney.” Any other work product that is discoverable is provided with conditional immunity if “the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing the claim or defense of that party or will result in injustice.” CCP § 2018.030 (b). The law does not describe “work product” and individual courts are left on a case-by-case basis to decide what constitutes the work product of an attorney. Jeanette H in re. 225 Cal.App.3d 25, 31. (1990)
Comparison with State Defense of Attorney’s Work Product The doctrine of the federal work product is distinct in two notable respects from the doctrine of the California work product. First, there is a more expansive California law. It gives the security of the work product to any document prepared by an attorney in relation to his or her job as an attorney, regardless of whether litigation is contemplated. 143 Cal.App.3d 810, 815. Rumac v. Bottomley (1983) “Only products “prepared in anticipation of litigation or for trial” are protected by the federal work product law. FRCP 26(b) (3). Second, where the California law offers full security for ‘[a]ny writing representing the impressions, assumptions, views, or legal analysis or hypotheses of an attorney,’ CCP § 2018.030(a), the Federal work product rule only provides eligible protection subject to the interpretations of a court. On a demonstration of considerable need, standard work product materials are discoverable in federal courts where the party seeking discovery does not procure comparable materials without unreasonable hardship. 26(b) of FRCP (3). As a restriction, the Federal Rule specifies that ‘[i]n requiring the discovery of such materials when the appropriate demonstration has been made, the court shall guard against disclosure of any attorney’s mental observations, assumptions, opinions or legal theories. Concerning the lawsuit.’
Whether or not the work of lawyers was carried out in a case that is subject to federal jurisdiction, he or she is nevertheless subject to a court ruling that the work product could not be covered and thus that his or her rights were waived by the attorney.
To protect attorneys and their efforts, the work product doctrine was developed, because attorneys risk waiving protection through their own actions. See Lohman v. Supreme Court (1978) 81 Cal.App.3d 90, 101 (through the attorney’s conduct, finding the security of the work product is waived). Waiver of the protection of the work product is not specified in the law and is typically found in similar circumstances as waiver of the privilege of the attorney-client: by failure to assert the privilege, by tendering certain issues, by behavior inconsistent with claiming the privilege, and by voluntary disclosure or consent of an attorney to report to a person other than the client who has no interest in claiming the privilege HBOC McKesson, Inc. v. Sup. 9 Cal.Rptr.3d 812. Ct (2004) Attorneys risk losing the security of the work product by their own conduct in both California and federal courts.
Waiver of disclosure to a third party by an attorney of his or her work product should not be dismissed as a novice error, particularly in the light of a recent decision by the Northern District of California. In Ward v. Equilon Enterprises, LLC (N.D. Cal., July 13, 2011) 2011 WL 2746645, a federal district court enforcing the Discovery Act of California was ordered to review the order of a magistrate judge allowing an investigative report prepared by the attorneys of the defendant to be made. 2011 WL 2746645, at *1. Ward v. Equilon Enterprises, LLC (N.D. Cal., July 13, 2011) The claimant in the action was employed by the contractor of the defendants and lodged a lawsuit against the defendants for negligence and responsibility for work-related accidents on the premises. Id. In accordance with Cal-OSHA provisions codified in the California Code of Regulations, Title 8 section 5189, the defendant’s attorney conducted an investigation of the action. Id. Under section 5189(m), during its investigation, the incident investigation team was required to include a contract employee because the incident involved a contractor’s job. Citing Id. Cal. Regs code. Tit, tit. 8, § 5189(m) of the (2011). To meet the Cal-OSHA provision, the defendant’s counsel had an employee of the Plaintiff’s employer on its investigation team. Id. Subsequently, the plaintiff requested creation of the investigation report. Id. in *3. Defendants objected to the creation of the investigation report, arguing that the report was covered by the commodity theory of the attorney’s practice. Id. The magistrate judge found that there was no confidentiality for the inquiry and report and that it was discoverable. Id. Defendants’ objected to the waiver on the grounds that the Plaintiff already had a worker’s compensation lawsuit against his employer so that the “companies’ anticipated litigation on the same issue or issues against a common adversary,’ and that the investigation and report remain privileged because the companies had “strong common interests in sharing the fruit of the efforts to plan the trial. Tel. Tel. & Tel. Tel. C. 642 F.2d 1285, 1299 (D.C. Cir. 1980). In affirming the decision of the magistrate judge, the district court found that the involvement of a third party employee in the inquiry by the Defendants constituted a voluntary disclosure of the investigation and report because the employer of the Plaintiffs was not a party to the instant litigation and his restitution against his employer for the compensation claim of his employee was not conditional on a finding of a finding of compensation Id.-Id.
The lawyers of the defendants in Ward were unable to retain their investigative report’s work product confidentiality because during their compilation they used a third party. The defense was not saved because the presence of the third party complied with the requirements of Cal-OSHA, nor was it saved on the basis that, due to the compensation action of the parallel worker, the third party had an incentive to preserve the confidentiality of the details. Contra Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal.App.4th 1453, 1459 (holding that “disclosure only functions as a waiver if otherwise protected information is disclosed to a third party who has no interest in keeping a significant portion of the work product confidential”) (emphasis added; citations omitted).
Since the Ward decision was taken at the level of the district court, and is thus not binding on California courts, attorneys producing their own work product should always be given pause. A court could be convinced that disclosure to a third party not interested in the immediate case immediately waives the doctrine of the work product, making it impossible to protect rigorous inquiries of the solicitor. In planning their work product, attorneys should continue to be careful and be sure to mark such work accordingly. It may or may not be clear what authority is relevant, so it is an important preliminary step to protect all attorney work products from the beginning to recognize the parameters of both California and the Federal work product doctrine. If a case is finally removed to federal court, California’s wider rights might not be as soothing. Moreover, no matter what jurisdiction a case ends up in, any case may be harmed by accidental disclosure of attorney work product.