Work Product Rule

A legal doctrine that provides that certain materials prepared by an attorney who is acting on behalf of his or her client during preparation for litigation are privileged from discovery by the attorney for the opposition party.

Under rules of civil and CRIMINAL PROCEDURE, as well as some statutes, parties to a civil lawsuit or a criminal prosecution must provide each other with information about the pending litigation. If a party will not disclose information during the discovery process, a court may issue an order compelling the production of evidence.

The work product rule is an exception to the concept of sharing information. This rule is based on the attorney-client relationship, which includes maintaining the confidentiality of information given by the client. The general rule is that legal research, records, correspondence, reports, or memoranda are attorney work product to the extent that they contain the opinions, theories, strategies, mental impressions, or conclusions of the client, the attorney, or persons participating in the case with the attorney, such as a jury consultant.

The U.S. Supreme Court, in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), upheld the legitimacy of the work product rule contained in the Federal Rules of Civil Procedure. Since the Hickman decision, there have been numerous cases in federal and state courts involving disputes over what constitutes non-discoverable work product.

For example, in Bondy v. Brophy, 124 F.R.D. 517 (D. Mass. 1989), the federal district court ruled that the work product rule applied to information obtained by an investigator hired by the attorney for Edna Bondy, the administrator of a probate estate, to look into decedent John Harrington's property transfers. Bondy sued Carolyn Brophy regarding one of the transfers, and Brophy sought to obtain information from the investigator, including identities of persons investigated, identities of persons contacted, and copies of any and all written reports. She argued that the work product rule only applied to information gathered for a trial or litigation and that at the time of the investigation, no litigation was contemplated. The court rejected her argument, finding that the information collected was not in the ordinary course of business, nor was it typical for the administrator of an estate to hire an investigator to look into property transfers of a decedent. The only reasonable inference is that the investigator was hired because Bondy had questions about these transfers and was considering appropriate legal action if the inquiry turned up evidence of questionable conduct. Moreover, the investigator was hired by Bondy's lawyer. Under these circumstances, the investigator's report and the names of persons he contacted enjoyed qualified protection under the work product rule.