Privilege and Work Product

The need to protect work product is one of the most daunting issues lawyers face in a litigation process. Many solicitors tend to forget the basic elements of the work product doctrine. Most associates will typically remember Hickman vs. Taylor (1947) but are likely to forget the issues pertaining to opinion work product or the discovery of the fact.

While the work product doctrine does offer litigation support to legal representatives, it also has certain challenges. In this article, we’ll discuss those challenges and everything else you need to know about the work product and the associated privilege concept.

The Work Product Doctrine and Privilege

The work product doctrine specifies that an adverse party may not compel or discover the disclosure of oral or written materials prepared for or by an attorney, particularly while preparing for litigation. The idea was recognised by the Supreme Court in Hickman vs. Taylor, which pointed out that the work product doctrine was a rebuttable presumption. This refers to a presumption that an adverse party may not have access to materials collated by solicitors for the trial.

privilege
work product and privilege

This means that the work product doctrine offers a qualified privilege from document disclosure, such as legal memoranda or witness statements prepared by the counsel prior to litigation.

However, when a party has non-privileged and relevant facts that are essential to the preparation of the adverse party’s case, this presumption can be overcome. Hence, the adverse party can compel or discover disclosure of work product or materials by proving a ‘substantial need’ and ‘undue hardship’.

The Supreme Court clarified in the Unites States vs. Nobles (1975) that the work product doctrine applies to both civil and criminal litigation.

Their effect in eDiscovery

It’s important to note here that work product may be used to protect documents from the discovery that were prepared a long time before the start of the litigation process. Thus, litigation adversaries argue that the assertions for work product give an earlier trigger date to preserve relevant information. That’s because by the time the trial is foreseeable or reasonably anticipated, the duty to preserve relevant materials, such as the work product doctrine, ripens. In some cases, this results in the duty to preserve months or years before the trial. This puts the parties at risk of getting spoliation sanctions for not sticking to relevant evidence from the retroactive preservation date. 

This is exactly what happened in the Siani vs. State University of New York case—the defendant’s duty to preserve the materials was triggered around a year prior to filing the lawsuit due to the use of work product doctrine. While spoliation sanctions were not issued in this case by the Siani court, the outcome of Sanofi Aventis vs. Glenmark case was different. In this case, a permissive adverse inference instruction was affirmed by the Federal Circuit for the lost ESI, resulting in a comparable work product scenario.

In Summary

The work product doctrine and the associated privilege provides litigation support to associates or legal representatives. However, to prevent the chances of spoliation sanctions, they must ensure that the materials remain as relevant and current as possible.

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