Work Product Doctrine

The work product doctrine protects documents and materials prepared by or for a party or its lawyer in anticipation of litigation, such as notes, investigation reports and case strategy. It is related to the attorney-client privilege but broader in who it covers and narrower in how firmly it protects.

Origin

The U.S. Supreme Court recognized the doctrine in Hickman v. Taylor in 1947, and it was later written into Federal Rule of Civil Procedure 26(b)(3). States have similar rules.

Significance in Asbestos Context

Ordinary work product can be obtained by the other side if it shows a substantial need and cannot get the same information another way without undue hardship; a lawyer's mental impressions, opinions and legal theories receive near-absolute protection. In asbestos cases the doctrine comes up when companies resist producing industrial hygiene surveys, medical studies or internal reviews they say were prepared because of expected lawsuits, while plaintiffs argue those documents were made for ordinary business or safety reasons. It also protects the plaintiff's side: a lawyer's interview notes and case analysis are generally not available to defendants. Disputes are often decided by the judge after reviewing the documents privately.

Example Sentence

The defendant argued that its 1979 dust survey was work product prepared for litigation, but the court ordered it produced because it had been done as part of routine plant safety.

Related Terms

Attorney-Client Privilege, Discovery, Industrial Hygiene, Protective Order, Interrogatories, Corporate Knowledge

Notes

• Notes you make for your lawyer about your case may be protected; label them as prepared for your lawyer.
• Ask your lawyer before sharing any case materials with family members or others.