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Work Product Doctrine: Scope, Limits, Waiver

The right of attorney-client privilege and the doctrine of the work product, has some limits. The general concept of attorney-client privilege is that a client has the privilege to refuse to reveal confidential correspondence made for the purpose of promoting the delivery of professional legal services to the client and to prohibit any other person from revealing them. The scope of this article is beyond a discussion of attorney-client privilege. However, sometimes, the distinction between the right of the attorney-client and the doctrine of the work product is not understood.

“Under the working product doctrine, materials prepared by a party or its representatives (including “an advocate, consultant, defense, indemnifier, insurer, or agent”) in anticipation of litigation or for trial are not discoverable without “a proof that the party seeking discovery has a substantial need for the materials in the preparation of the case and that the party seeking discovery is unable to do so Security of the work product refers to “all results of methods used by lawyers to bring more understanding of the merits into the file of the attorney.”

A three-step analysis to decide if content is covered by the work product doctrine was illustrated in Ranft v. Lyons by the Wisconsin Court of Appeals:

First, it must be shown by a party seeking exploration that the objects are within the reach of Rule 804.01(2)(a), Stats. Second, if the demonstration is successful, the party opposed to the disclosure of the products must prove that they were’ prepared in anticipation of litigation or for trial.’ If so, the work-product doctrine protects the items. Third, the party seeking discovery must show a “substantial need for the materials in the preparation of the case” if tangible products are work-product, and that it “is unable to obtain the substantial equivalent of the materials by other means without undue hardship.”

The group attempting to shield the material from disclosure falls on the responsibility of proving the first two elements. On the party pursuing the discovery, the last factor falls.


Discoverable facts

There are two types of work product: work product of opinion and product of reality or ordinary work. It is important to differentiate between these two types of work product. The work result of the opinion involves the mental observations, assumptions, views, or legal theories concerning the proceedings of an attorney or other representative of a party. The working product of opinion is more “scrupulously protected” than the ordinary or real working product. Indeed, even though a work product objection is overruled and disclosure ordered, a court must also guard against the disclosure of a party’s counsel or other representative’s mental observations, assumptions, views, or legal theories affecting the litigation.

While the reasoning process and mental experiences of an attorney are covered, the underlying facts are not. This is because it is necessary that all parties have knowledge of all the facts in order for litigation to be successful. Trial by ambush in Wisconsin is no longer the accepted process. “Adequate preparation for trial by counsel with full knowledge of the facts before them will not only result in a more orderly trial, but will often result in counsel reassessing their cases in order to avoid unnecessary trials.”


Work product must be prepared in anticipation of litigation or for trial

If a request for documents prepared by the insurance firm is made, you must decide if the materials have been prepared in the course of the investigation and modification of the claim, or in the run-up to the case or the trial. If the former is not a working product and the privilege is not attached; if the latter is attached, the privilege is attached, although the materials will still be discovered. In order to decide whether the document can reasonably be said to have been prepared or received because of the possibility of litigation, a study of the existence of the document and the factual situation in the specific case must be considered.

The word “litigation” should not be interpreted narrowly. A type of litigation can be considered to be any dispute in any formal structure, including with an insurance provider, through the office of the insurance commissioner, or merely a dispute on paper or a dispute over language. The “litigation” does not need to be the proceeding in which the doctrine is claimed. 18 Nor must the document or information be obtained in anticipation of the litigation in which the document or information is sought.

It may be inadequate to consult or retain an attorney to conduct an investigation or participate in discussions “to establish a reasonable anticipation of litigation.” For example, if an attorney is employed to interview people and undertake other evidence findings in order to provide an impartial independent report, the data collected is not the work product of the attorney and not shielded from disclosure. The fact that litigation actually occurs or that a party has retained an attorney, launched investigations, or engaged in discussions on a claim is insufficient to prove conclusively that the materials were produced in anticipation of litigation. However, if an attorney personally prepares a report of an interview with an eye to litigation, the memorandum would qualify as a work prod prod.

“Courts have interpreted the [work product doctrine] to require a more substantial and specific threat of litigation before the expectation of a party is considered a reasonable and justifiable motivating force.” The risk of litigation must be more than “‘a remote prospect,’ a ‘inchoate possibility,’ or a ‘probable chance.'”

An measure of the possibility of litigation is whether documents were prepared “in anticipation of litigation or for trial.” In determining if materials were produced in anticipation of litigation, time is one factor to consider. There appears to be no doubt that all is done “in anticipation of litigation” until the suit is filed. Similarly, if the plaintiff hires lawyers, the insurance carrier’s job is likely to be done in anticipation of litigation.

The identity of the individual who prepared the materials is another aspect to consider in deciding whether materials were produced in anticipation of litigation. Investigation and review can be carried out by a representative of the insurance firm, separately or under the direction of counsel, by a retained counsel or an employee, a retained counsel’s representative or consultant, or by a retained counsel. The data is likely to be work product and privileged when actions are taken and materials and documents produced at the request of, by, and/or for an attorney. Litigation defense includes non-lawyers’ intervention and the preparation of materials for claims that are likely to lead to litigation. “In fact, the Work Product Statute of Wisconsin explicitly states that protection is granted to materials “prepared by a party or its members (including “an attorney, consultant, guarantee, compensator, insurer, or agent…”). The job done by an adjuster can still still be covered by the work product.

When a non-lawyer performs an investigation, the demonstration needed for development is possibly less powerful than when the discovery was made at the direction of an attorney. Furthermore, just because an insurance firm has attorneys managing in-house cases does not make all products privileged or job product. This is because only when it has the minimum amount of details in order to make the determination can an insurer make a claim decision.