Although discovery is vast and includes most information there are a few limitations of how far reaching it is allowed do be. Of these limitations includes privilege and the work product of materials.


Privilege refers to material that one party is privileged to maintain sole control over. The classic examples of privilege arise when there is a special relationship between parties. Such relationships include lawyer-client or doctor-patient.

Consider the defense counsel talking with the plaintiff (not his counsel). In this situation, the defense counsel is not allowed to ask about conversations the plaintiff has had with his counsel. For example, the defense counsel cannot ask, “Did you tell your counsel that you ran a red light? What advice did your counsel give you?”

However, that does not mean that the information related to the red light would not be privileged. If asked a question relating to the facts of the case (not the advice) then that information must be shared. For example, the defense counsel can ask, “Did you run the red light?”

Attorney Client Privilege

Restatement (3d) of the Law Governing Lawyers § 38

The Attorney-Client privilege may be invoked with respect to:

  1. A communication (written or oral)
  2. Made between privileged persons (client, attorney)
  3. In confidence (no third parties present, even trusted parties! Nondisclosure agreements could allow attorney coworkers to participate)
  4. For the purpose of obtaining or providing legal assistance for the client.

If any of this information is shared outside of this relationship (with a third party), the privilege is waived and the communication is discoverable.

Work Product

This refers to the protection attorneys have of notes they have produced to prepare for trial. In other words, attorneys are entitled to retain possession of their work. Examples of work product include strategy assessments, discussions of the credibility of the witness, settlement prospects, etc. Obviously attorneys would want to protect this information. If you consider litigation as a sport or game, having the oppositions playbook would render a significant advantage. As such, attorneys want to protect their playbook. Rule 26(b) outlines some of the protections afforded to attorneys.

Hickman v. Taylor

329 U.S. 495 (1947).

Taylor is the defendant who was requested to deliver up documents related to his feelings towards witnesses interviewed. The trial court said he had to deliver the documents. The appellate court reversed and said that he did not.


Does the work product of attorneys have to be disclosed?


The work product of attorneys is not to be disclosed unless the lack of disclosure prejudices the other party who is unable to gather the information otherwise.


There was no reason to disclose, so there is no disclosure necessary. Affirmed.


The defendant was a tug boat who had sunk in its operations. 5 of the 9 crew members were killed. Anticipating litigation, the defendant hired counsel to prepare for the litigation.

In his preparations, the counsel interviewed the surviving crew members and other witnesses. When suit eventually came the plaintiff requested any statements taken from the witnesses. The stated purpose was so the plaintiff could prepare to interview the witnesses. The defendant’s counsel admitted that there were statements, but refused to disclose them.

The matter was taken to the district court who said that the documents had to be shared. When the defendant continued to refuse, the court sanctioned the counsel and held the defendant in contempt. The court of appeals reversed.


This is a case where the documents here did not meet any categories at the time. This was not privileged information because they were documents taken from a third party witness. However, it was not evidence because it was all subjective based on the attorney’s recollection.

Ultimately the court determines that the work product is protected, despite the liberal approach to discovery. The only situations when it would not be protected is when the material involved is necessary to the case and when the opposition is prejudiced because they are unable to obtain information on their own.

In sum, because the product is protected unless there is a good reason, and there is no good reason here, the documents should not be handed over. The only reason provided by the plaintiff was so that he could prepare for the interviews (not expensive). This is not an example of a “substantial need for the materials to prepare its case.”

There are three reasons to protect this product.

  1. Keep a “chilling effect” at bay. Disclosure of this kind would lower the high standards of lawyers.
  2. To keep another party form being “free riders.” Let them conduct their work without borrowing others.
  3. To prevent the lawyer from presenting material where he is essentially a witness.

After this case, the rules were amended to include Rule 26(b)(3).

Additional Notes

The work product protection is to protect lawyers insights, plans, etc. from discovery. So, anything that an attorney does to prepare for litigation is protected from discovery. It is important to realize that this only protects the attorney. The facts from the case from the client is still discoverable. The reason for this protection is to prevent other attorneys from being free riders.

If there is no opportunity for the witness to be available to the other side, then some work product can be requested by the court. Specifically, a statement of what the witness was asked and what they responded are allowed to be discoverable. The impressions and legal theories of the attorney are still not discoverable. The rule says that the material needs to be discoverable and there needs to be a substantial need for the materials to help prepare their case and is unable to obtain that product through other means.

Case Notes

The test is to determine whether the other side had the opportunity to gather the facts themselves. If they do have the opportunity, then there is no need to gather information from the lawyer.

However, if an employee creates a report in the standard business, that report is not considered a work product. This is because the report occurs in the standard practice of business (Upjohn notice).

Process for analysis

  1. Is the material available to both parties?
  2. If not, would the material normally be discoverable?
  3. If so, is there a substantial need for the material?
    1. The statements about the material is discoverable.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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