Showing 72 of 72 results

Chapter: 33.2

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 165 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "Even before the United States Supreme Court decided Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 393, 91 L.Ed. 451, 462 (1947) and recognized the existence of a work product doctrine, such a doctrine had been developing slowly in response to changes imposed on the common law practice of discovery.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA

Chapter: 33.5

Case Name: Montesa v. Schwartz, 12 Civ. 6057 (CS) (JCM), 2016 U.S. Dist. LEXIS 80822 (S.D.N.Y. June 20, 2016)
("Even where Rule 26(b)(3) does not protect materials from disclosure, federal courts have recognized broader work product protection under the precedent of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisidction State Cite Checked
2016-06-20 Federal NY

Chapter: 33.5

Case Name: In re Republic of Ecuador, Case No. 4:11mc73 RH/WCS, 2012 U.S. Dist. LEXIS 157497, at *10 (N.D. Fla. Nov. 2, 2012)
("A court could conclude on its own that greater protection is warranted; the rules do not preclude a court from expanding the common-law work-product protection beyond that explicitly recognized in the rules. . . . But the better view is that a court should not expand the work-product protection in this area at this time beyond the protection long recognized and more recently expanded through the rules process.")

Case Date Jurisidction State Cite Checked
2012-11-02 Federal FL B 5/13

Chapter: 33.5

Case Name: RLI Ins. Co. v. Conseco, Inc., 477 F. Supp. 2d 741, 746 n.6 (E.D. Va. 2007)
("Fed. R. Civ. P. 23(b)(3), which partially codified Hickman [Hickman v. Taylor, 329 U.S. 495 (1947)], controls discovery of documents. Hickman still controls discovery of testimony, so Hickman controls here. See, e.g., Maynard v. Whirlpool Corp., 160 F.R.D. 85, 87 (S.D.W. Va. 1995).")

Case Date Jurisidction State Cite Checked
2007-01-01 State VA B 3/16
Comment:

key case


Chapter: 33.6

Case Name: Durand v. The Hanover Ins. Group, Inc., Civ. A. No. 3:07-CV-00130-HBB, 2016 U.S. Dist. LEXIS 143064 (W.D. Ky. Oct. 17, 2016)
("The Court notes that the burden of establishing the protection of the attorney-client privilege rests with the person or entity asserting it."; "The protection afforded work product is not a privilege as the term is used in the Federal Rules of Civil Procedure or the law of evidence.")

Case Date Jurisidction State Cite Checked
2016-10-17 Federal KY

Chapter: 33.6

Case Name: In re Naranjo v. Page, No. 13-1382, No. 13-2018, 2014 U.S. App. LEXIS 18293, at *24-25 n.16 (4th Cir. Sept. 24, 2014)
("We refer to the privilege only as a shorthand way of referring to the doctrine's protection -- and because parties (and indeed, this Court) so often refer to the doctrine as a 'privilege.'")

Case Date Jurisidction State Cite Checked
2014-09-24 Federal

Chapter: 33.6

Case Name: Lowe's Home Ctrs., Inc. v. THF Clarksburg Dev. Two, L.L.C., Civ. A. No. 1:12 cv 72, 2013 U.S. Dist. LEXIS 96978, at *5-6 (N.D. W. Va. July 11, 2013)
(ordering defendant to supplement an incomplete log within seven days; "The Court agrees with Lowe's that the privilege log does not comply with the requirements of the Federal Rules or the Local Rules. First, and possibly most importantly, the Privilege Log has a general title of 'Communication Protected by Attorney Client Work Product Doctrine.' There is no 'Attorney Client Work Product Doctrine,' however, at least in West Virginia, and THF has therefore failed to 'identify the nature of the privilege that is being claimed' as to each document.")

Case Date Jurisidction State Cite Checked
2013-07-11 Federal WV B 4/14

Chapter: 33.6

Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *7 n.3 (W.D. Pa. Apr. 3, 2013)
("Throughout the pleadings, the parties refer to the work product doctrine as the work product 'privilege.' Work product protection is not truly a privilege, but rather, created by the rules of discovery.")

Case Date Jurisidction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 33.8

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("Because the protective spheres of the work-product doctrine and the attorney-client privilege are different, this result is not inconsistent with the Court's ruling above that the documents contain only fact work product. The strong protection afforded to opinion work product exists to protect an attorney's mental impressions about her client's case. Those mental impressions are not reflected, expressly or otherwise, in the charts, tables, and graphs that make up these documents. The documents contain only factual compilations and analyses, not legal judgments. Nevertheless, the attorney-client privilege protects even purely factual communications between attorney and client when those facts are gathered at the request of in-house counsel for the purpose -- or at least with a significant purpose -- of providing legal advice to the corporation. The Court finds that was the case here with regard to the PowerPoints and spreadsheets at issue.")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal DC

Chapter: 33.8

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., Case No. 09-mc-564 (GMH), 2016 U.S. Dist. LEXIS 131682 (D.C. Sept. 27, 2016)
("[T]he work-product doctrine and the attorney-client privilege can protect the same document but for different reasons. The discussion below demonstrates that, in this case at least, documents containing factual work product, when compiled at the request of an attorney for the purpose of rendering legal advice, fall under the protections of the attorney-client privilege and therefore are not subject to disclosure.")

Case Date Jurisidction State Cite Checked
2016-09-27 Federal DC

Chapter: 33.8

Case Name: United States v. Allen, 14 Cr. 272 (JSR), 2016 U.S. Dist. LEXIS 4329 (S.D.N.Y. Jan. 8, 2016)
(holding that the attorney-client privilege protected a government cooperator's notes made when he reviewed the defendant's testimony, even if the cooperator did not give his notes to a lawyer; "Furthermore, independent of the Court's determination that Mr. Robson's notes are protected by the attorney-client privilege, the Court holds that Mr. Robson's [Cooperator] notes are subject to work-product protection as well. Mr. Robson's notes were prepared 'at the behest of counsel in anticipation of litigation.'")

Case Date Jurisidction State Cite Checked
2016-01-08 Federal NY

Chapter: 33.8

Case Name: Tracy v. Telemetrix, Inc., 8:12CV359, 2015 U.S. Dist. LEXIS 153852 (D. Neb. Nov. 13, 2015)
("Where two or more parties are jointly represented by the same attorney in litigation, the communications between the attorney and her clients are protected by the attorney-client privilege and are subject to the work product doctrine.").

Case Date Jurisidction State Cite Checked
2015-11-13 Federal NE

Chapter: 33.8

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
("A lawyer's evaluation of a client's and its opponent's positions with respect to expected or ongoing settlement negotiations encompass both attorney-client privileged communications and attorney work product.").

Case Date Jurisidction State Cite Checked
2015-11-13 Federal LA

Chapter: 33.8

Case Name: Edward Wisner Donation v. BP Exploration & Production, Inc., Civ. A. No. 14-1525, 2015 U.S. Dist. LEXIS 153846 (E.D. La. Nov. 13, 2015)
("A lawyer's evaluation of a client's and its opponent's positions with respect to expected or ongoing settlement negotiations encompass both attorney-client privileged communications and attorney work product.")

Case Date Jurisidction State Cite Checked
2015-11-13 Federal LA
Comment:

key case


Chapter: 33.8

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; "[N]othing forecloses a party from asserting both the work-product doctrine and the attorney-client privilege as a basis for protection.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 33.8

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "KBR seemingly would have it both ways and argues that the investigator should also count as its employee for purposes of creating attorney-client privilege when the investigator communicates something to the lawyer. . . . That is simply incorrect. Instead, such material is inherently work product protected so long as it is prepared in anticipation of litigation. The attorney-client privilege and opinion work product protection separately operate as barriers to compelled disclosure, and there is nothing to be gained by sloppily insisting on both or by failing to distinguish between them. . . . The District Court correctly stated that materials produced by an attorney's agent are attorney-client privileged only to the extent they contain information obtained from the client including 'where the purpose of the report was to put in usable form the information obtained from the client.'"; "[T]he synopses in the two disputed reports constitute a combination of attorney-client privileged materials and work product protected materials almost by definition. And, as another example, a critical mental impression capturing the investigator's assessment of the subcontractor's performance appears in a since-redacted footnote 55 to the December 17 order itself.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal

Chapter: 33.8

Case Name: ePlus Inc. v. Lawson Software, Inc., Civ. A. No. 3:09cv620, 2012 U.S. Dist. LEXIS 177616, at *9-10 (E.D. Va. Dec. 14, 2012)
("[A]ny document that was prepared in anticipation of the contempt proceeding could reasonably be seen as being entitled to work product protection. Lawson has failed to establish that any of the documents were prepared in anticipation of litigation prior to the filing of ePlus' MOTION FOR ORDER TO SHOW CAUSE . . . on September 9, 2011. However, documents prepared after that date and prepared in anticipation of those proceedings are entitled to work product protection, even where their subject matter falls within the subject matter waiver of attorney-client privilege, as long as they have been properly claimed as such in the privilege log.")

Case Date Jurisidction State Cite Checked
2012-12-14 Federal VA b 9/13

Chapter: 33.8

Case Name: Graff v. Haverhill North Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013 (S.D. Ohio Nov. 13, 2012)
January 23, 2013 (PRIVILEGE POINT)

"Where Do Courts Look When Determining Whether a Litigant has Proven Attorney Client Privilege or Work Product Protection?: Part III"

The last two Privilege Points noted that some courts assess a privilege or work product claim by relying on extrinsic evidence such as affidavits, while other courts look primarily or exclusively at the withheld documents themselves. Most courts examine both the documents and extrinsic evidence.

In Graff v. Haverhill North Coke Co., Case No. 1:09-cv-670, 2012 U.S. Dist. LEXIS 162013 (S.D. Ohio Nov. 13, 2012), a litigant claimed work product and privilege protection for documents created during a consultant's audit. In rejecting the work product claim for one audit, the court pointed to the documents themselves. Among other things, the company president's memorandum requesting the audit indicated that "the purpose of the audit was to assess general compliance with regulatory requirements and company policies." Id. At *15. Another company executive described the audit as "generic." Id. At *16. Thus, the documents themselves undercut the work product claim. In contrast, the court found that many of the documents deserved attorney-client privilege protection. Among other things, the court noted that the same executive who described the audit as "generic" had submitted an affidavit which "confirms that the audit was prepared to assist counsel with providing legal advice" to the company. Id. At *28.

Lawyers should always teach their clients to articulate the basis for a protection claim on the face of protected documents. Companies involved in litigation should also determine what a pertinent court will examine in assessing the company's withholding of protected documents. Most courts expect an affidavit or other extrinsic evidence.

Case Date Jurisidction State Cite Checked
2012-11-13 Federal OH
Comment:

key case


Chapter: 33.8

Case Name: Cappetta v. GC Servs.Ltd. P'ship, Civ. A. No. 3:08CV288, 2008 U.S. Dist. LEXIS 103902, at *13-14 (E.D. Va. Dec. 24, 2008)
("It is not clear whether Defendant 'expressly' made a proper claim in the first place, as its objections to requests for production all assert 'work product/attorney client privilege,' without distinguishing between the two.")

Case Date Jurisidction State Cite Checked
2008-12-24 Federal VA

Chapter: 33.8

Case Name: Webb v. Joiner, Case No. CL03-312, 2006 Va. Cir. LEXIS 241 (Roanoke Cty., Va. Cir. Ct. July 17, 2006)
("Assuming without deciding that the mistakenly delivered document in question is covered by the attorney/client privilege, the Court also notes that it is a writing prepared in anticipation of litigation or for trial as contemplated by Rule 4:1(b)(3) of the Rules of the Supreme Court of Virginia and is covered by the work product doctrine.")

Case Date Jurisidction State Cite Checked
2006-07-17 State VA

Chapter: 33.8

Case Name: Lewis v. Capital One Servs., Inc., Civ. A. No. 3:04CV186, 2004 U.S. Dist. LEXIS 26978, at *18-19 (E.D. Va. June 10, 2004)
("Item 9 was clearly meant to be both protected by the attorney-client privilege and the work product doctrine. Item 9 is a memorandum from Capital One's in house attorney to Mr. Knowles and Melanie Lewis, created at the request of Ms. Lewis and Mr. Knowles for legal advice, and clearly marked attorney-client privilege / attorney work product. The memorandum provides legal advice relating to issues of supervision of Jannon Pierce, one of Plaintiff's Counsel's other clients. Plaintiff argues that Defendant somehow waived the privilege by sharing Item 9 with her during the scope of her employment. Plaintiff argues that she announced her belief that she was being discriminated against on the basis of her sex in October 2003. Plaintiff argues further that it was unreasonable for Defendant to believe that after her announcement, she would not share privileged information provided to her in the scope of her employment with her attorney. Plaintiff's assertion that Defendant waived its privilege by assuming that she would uphold her fiduciary duty to maintain her employer's confidences is unpersuasive. Item 9 falls within the attorney-client privilege and that privilege was not waived by Defendant.")

Case Date Jurisidction State Cite Checked
2004-06-10 Federal VA
Comment:

key case


Chapter: 33.9

Case Name: Bousamra v. Excela Health, No. 1637 WDA 2015, 2017 Pa. Super. LEXIS 166 (Pa. Super. Ct. March 13, 2017)
("The work product protection 'shelters the mental processes of the attorney' so that the lawyer can 'analyze and prepare his client's case.'. . . It is an 'intensely practical' privilege and not all written materials prepared by counsel with litigation in mind are free from discovery.")

Case Date Jurisidction State Cite Checked
2017-03-13 State PA

Chapter: 33.402

Case Name: N.H. Ins. Co. v. Blackjack Cove, LLC, Case No. 3:10-0607, 2013 U.S. Dist. LEXIS 13196, at *12 (M.D. Tenn. Jan. 31, 2013)
("The work product doctrine is partially codified in Fed. R. Civ. P. 26(b)(3), which is derived from Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisidction State Cite Checked
2013-01-31 Federal TN B 1/14

Chapter: 33.701

Case Name: Adair v. EQT Prod. Co., Case No. 1:10cv00037, 2012 U.S. Dist. LEXIS 89403, at *7-8 (W.D. Va. June 28, 2012)
("Under Virginia law, the work-product doctrine is closely related to the attorney-client privilege. See Edwards, 370 S.E.2d at 302; see also Rules of Sup. Ct. of Va. Rule 4:1(b)(3) (2011.) '"Work product" generally is defined as "the product of a party's investigation or communications concerning the subject matter of a lawsuit if made (1) to assist in the prosecution or defense of a pending suit, or (2) in reasonable anticipation of litigation." BLACK'S LAW DICTIONARY 1600-01 (7th ed. 1999).' Virginian-Pilot Media Cos., LLC v. City of Norfolk School Bd., 81 Va. Cir 450, 2010 WL 7765117, at *8 (Dec. 28, 2010). 'Generally, material such as "interviews, statements, memoranda, correspondence, briefs, mental impressions, [and] personal beliefs," which are "prepared by an adversary's counsel with an eye toward litigation" may be free from discovery.' Edwards, 370 S.E.2d at 302 (quoting Hickman v. Taylor, 329 U.S. 495, 511 (1947)).")

Case Date Jurisidction State Cite Checked
2012-06-28 Federal VA

Chapter: 33.701

Case Name: RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 274 (Va. Cir. Ct. 2002)
("Closely related to the attorney-client privilege is the work-product doctrine. See Edwards, 235 Va. at 510, 370 S.E.2d at 302.")

Case Date Jurisidction State Cite Checked
2002-01-01 State VA

Chapter: 33.702

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; "Although related, work-product protection and the attorney-client privilege are two distinct doctrines with substantially different analyses.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 33.702

Case Name: Ford Motor Company v. Michigan Consolidated Gas Co., Civ. A. No.: 08-CV-13503, 2015 U.S. Dist. LEXIS 145311 (E.D. Mich. Oct. 27, 2015)
(holding that the work product doctrine can protect documents created both in the ordinary course of business and in connection with litigation; "Work performed in anticipation of litigation need not be for the purpose of obtaining legal advice to be protectable under the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2015-10-27 Federal MI

Chapter: 33.702

Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
("The work product protection is broader than the attorney-client privilege in that it is not restricted solely to confidential communications between an attorney and client. . . . It is narrower, however, insofar as the doctrine protects only work performed in anticipation of litigation or for trial.")

Case Date Jurisidction State Cite Checked
2015-02-20 Federal DC

Chapter: 33.702

Case Name: United States v. NeuroScience, Inc., 14-mc-003-slc, 2015 U.S. Dist. LEXIS 20572 (W.D. Wis. Feb. 10, 2015)
("The doctrine th [sic] is broader in scope than the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2015-02-10 Federal WI

Chapter: 33.702

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("This court agrees with Plaintiffs that any previous determination regarding confidentiality in the attorney-client privilege context is not dispositive of whether work-product protection applies to the documents at issue here. Attorney-client and work-product protections are two independent privileges which require separate analyses and reflect different policies. . . . Work-product protection is broader than attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 33.702

Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("'The plaintiff's arguments often interchange the protections afforded by the work-product doctrine with those offered by the attorney-client privilege. While courts often discuss them together, I will note that they are distinct doctrines with distinct case law.'")

Case Date Jurisidction State Cite Checked
2014-04-24 Federal PA

Chapter: 33.702

Case Name: Skynet Elec. Co., Ltd. v. Flextronics Int'l, Ltd., No. C 12-06317 WHA, 2013 U.S. Dist. LEXIS 176372, at *6 (N.D. Cal. Dec. 16, 2013)
(discussing the different waiver standards for privilege and work product protection; finding that disclosure to a Taiwanese "patent attorney" did not waive work product protection, although those "patent attorneys" were not actually lawyers; "Plaintiff's claim of work-product immunity must be considered as separate and apart from claims of attorney-client privilege, as the two protections are distinct.")

Case Date Jurisidction State Cite Checked
2013-12-16 Federal CA B 5/14

Chapter: 33.702

Case Name: Prowess, Inc. v. Raysearch Labortories AB, Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013)
April 3, 2013 (PRIVILEGE POINT)

"Litigants Must Explain Which Protection Justifies Withholding Documents"

In general conversation, most clients and many lawyers use the term "privilege" when referring either to the attorney-client privilege or to the work product doctrine. However, lawyers must be more precise when justifying the withholding of protected documents in litigation.

In Prowess, Inc. v. Raysearch Labortories AB, the court noted that plaintiff's pleading justifying their withholding of documents "consistently refers to the communications at issue as 'privileged,' without clarifying which doctrine it intends to invoke." Civ. Case No. WDQ-11-1357, 2013 U.S. Dist. LEXIS 21449, at *6 n.4 (D. Md. Feb. 11, 2013). Explaining that the attorney-client privilege and the work product doctrine "include different elements, and serve entirely different purposes," the court bluntly held that it could not find that plaintiff had justified the withholding "without knowing precisely which protection is being asserted, and without knowing which arguments apply to each doctrine." Id.

To make matters more complicated for litigants, the work product doctrine itself involves numerous variations among federal courts applying just a single sentence in the federal rules. The next several Privilege Points will focus on some of these differences

Case Date Jurisidction State Cite Checked
2013-02-11 Federal MD
Comment:

key case


Chapter: 33.703

Case Name: United States v. Homeward Residential, Inc., Case No. 4:12-CV-461, 2016 U.S. Dist. LEXIS 32910 (E.D. Tex. March 15, 2016)
("'Work product is not a substantive privilege within the meaning of Federal Rule of Evidence 501.'")

Case Date Jurisidction State Cite Checked
2016-03-15 Federal TX

Chapter: 33.705

Case Name: In re Grand Jury Matter #3 John Doe, No. 15-2475, 2017 U.S. App. LEXIS 1498 (3rd Cir. Jan. 27, 2017)
("Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'. . . Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him."; "This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that 'evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.'. . . Rather, the second requirement -- use in furtherance -- exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan 'has passed beyond words and is [actually] on foot.'"; "To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been 'misused.'. . . Only in that limited circumstance -- misuse of work product in furtherance of a fraud -- does the scale tip in favor of breaking confidentiality."; "Here the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government 'does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.'"; "But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to 'discuss' it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.")

Case Date Jurisidction State Cite Checked
2017-01-27 Federal

Chapter: 33.705

Case Name: In re General Motors LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 159721 (S.D.N.Y. Nov. 25, 2015)
("The privilege and its cousin, the work product doctrine, serve both to protect the attorney-client relationship and to permit attorneys to carry out their duties fully.").

Case Date Jurisidction State Cite Checked
2015-11-25 Federal NY

Chapter: 33.705

Case Name: The New York Times Co. v. U.S. Dept. of Justice, 14-CV-3777 (JPO), 2015 U.S. Dist. LEXIS 133520 (S.D.N.Y. Sept. 30, 2015)
(in a FOIA case, analyzing work product protection for taped interviews of criminal detainees; "A document that would ordinarily be protected under Exemption Five loses its protection if 'the agency has chosen 'expressly to adopt [it] or incorporate [it] by reference.'"; "The attorney-client privilege and the work-product doctrine are, if not twins, at least very close siblings. Both privileges exist to protect the public's ability to access legal services. The former does so by allowing a client to communicate frankly and openly with his or her counsel; the latter by permitting the 'lawyer [to] work with a certain degree of privacy.". . . The Second Circuit has held that 'the principal rationale behind the attorney-client privilege -- to promote open communication between attorneys and their clients so that fully informed legal advice may be given -- . . . evaporates . . . once an agency adopts or incorporates [a] document.' . . . If publicly adopting a document vitiates the purposes of the attorney-client privilege, it is hard to see why it ought not to do the same to the work product doctrine. Similarly, if justifying agency action on the basis of a document shielded by the attorney-client privilege is offensive to FOIA, it is hard to see why justifying the same action on the basis of a document shielded by the work-product doctrine is not offensive. The Court concludes, accordingly, that express adoption doctrine applies to the work-product doctrine.")

Case Date Jurisidction State Cite Checked
2015-09-30 Federal NY

Chapter: 33.705

Case Name: Tianti v. Rohrer, Case CL-2015-10127, 2015 Va. Cir. LEXIS 165 (2015)
(an order sealing documents protected by the attorney-client privilege and the work product doctrine; "While no Virginia court has directly addressed this issue, multiple federal circuits have found the existence of a fully preserved attorney-client privilege to override the interest in openness for judicial records."; "These cases lead to the conclusion that the federal circuits are in general agreement that the attorney-client privilege is a sufficient interest to outweigh the public's interest in the openness of judicial records. The Court finds these cases persuasive and holds that Appellate has adequately rebutted the Shenandoah [Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253, 368 S.E. 2d 253, 4 Va. Law Rep. 2424 (1988)] presumption of public access by establishing privilege over certain documents in the record.")

Case Date Jurisidction State Cite Checked
2015-01-01 Federal VA

Chapter: 33.705

Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
("The qualified immunity covering documents or other tangible things falling within the classification of fact work-product 'is little more than an 'anti-freeloader' rule designed to prohibit one adverse party from riding to court on the enterprise of the other.' National Union, 967 F.2d at 985. In contrast, opinion work product is carefully guarded from disclosure to an opposing party as revealing an attorney's thoughts and opinions to an opposing party contradicts the principles underlying the adversary process.")

Case Date Jurisidction State Cite Checked
2014-07-11 Federal MD

Chapter: 33.705

Case Name: Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., Op. No.: 125974, Dkt. No.: SUCV2010-02741-BLS1, 2014 Mass Super. LEXIS 23, at *4-5 (Mass. Super. Ct. Jan. 23, 2014)
("As with most evidentiary privileges, the work product doctrine exists so that a socially desirable behavior -- in this instance, an attorney's creation and retention of suitably comprehensive case files so as to better represent a client -- will not be deterred by the fear of disclosure to an adverse party.")

Case Date Jurisidction State Cite Checked
2014-01-23 State MA B 8/14

Chapter: 33.705

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 92089, at *3-4 (S.D.N.Y. June 28, 2013)
(analyzing work product protection for materials created by a private investigator and communications with a public relations firm; "[I]t is important to bear in mind that the work product doctrine protects the confidentiality of documents and other materials prepared in anticipation of litigation except in limited circumstances. It rests in part on the premise that each party to a lawsuit should do its own work, including its own investigation of the facts, without intruding into and benefitting from the efforts of its adversary. And it extends to work prepared by a private investigator in anticipation of litigation, at least where the investigator is working at the direction of an attorney. Accordingly, in the absence of a more particular showing as to particular documents that the requisites of work product protection have not been made out by Chevron's privilege log -- and there is none -- the suggestion that none of the investigative materials have any protection to begin with fails. In particular, the suggestion that surveillance videos and photos taken by investigators in the context of a litigation such as this, and documents relating to such activities, 'are not protected to begin with' is frivolous. They quite obviously are materials prepared in anticipation of litigation and therefore protected by Fed. R. Civ. P. 26(b)(3)." (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-06-28 Federal NY B 4/14

Chapter: 33.705

Case Name: FDIC v. Fid. & Deposit Co. of Md., No. 3:11-cv-19-RLY-WGH, 2013 U.S. Dist. LEXIS 77702, at *5 (S.D. Ind. June 3, 2013)
("The purpose is to protect attorney's thought processes and mental processes and to avoid allowing a less diligent attorney to piggyback on the adverse attorney's trial preparation.")

Case Date Jurisidction State Cite Checked
2013-06-03 Federal IN B 4/14

Chapter: 33.705

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *2 (D.D.C. Apr. 2, 2013)
("The attorney-client privilege protects confidential communications made by a client to a lawyer for the purpose of securing legal advice or services, while the work product privilege protects a lawyer's mental processes while that lawyer is preparing for trial or working in anticipation thereof." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-04-02 Federal DC B 3/14

Chapter: 33.705

Case Name: Earthworks v. U.S. Dept. of the Interior, Civ. A. No. 09-1972 (HHK/JMF), 2013 U.S. Dist. LEXIS 49873, at *2 (D.D.C. Apr. 2, 2013)
("The former [attorney-client privilege] is said to advance the crucial societal interest in clients being candid with their lawyers, while the latter [work product doctrine] advances the equally important value in zealous advocacy." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-04-02 Federal DC B 3/14

Chapter: 33.705

Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 1478, at *10-113 (D. Ore. Feb. 4, 2013)
("The primary purpose of the work-product doctrine is to 'prevent exploitation of a party's efforts in preparing for litigation.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-02-04 Federal OR B 2/14

Chapter: 33.705

Case Name: Sherwin-Williams Co. v. Motley Rice LLC, Case No. CV 09 689237, 2013 Ohio Misc. LEXIS 7, at *4 (Ohio Jan. 31, 2013)
(holding that the lead paint plaintiffs' law firm of Motley Rice must produce documents for in camera review, in response to defendant Sherwin-William's discovery of how Motley Rice obtained copies of Sherwin-Williams trade secrets; "The work product privilege, unlike the attorney-client privilege, belongs to the attorney and assures that counsel's private files shall remain free from intrusions by opposing counsel in the absence of special circumstances.")

Case Date Jurisidction State Cite Checked
2013-01-31 State OH B 3/14

Chapter: 33.705

Case Name: Werder v. Marriott Int'l, Inc., No. 2:10cv1656, 2012 U.S. Dist. LEXIS 134719, at *4 (W.D. Pa. Sept. 20, 2012)
("The work-product doctrine furthers the adversary system by protecting the confidentiality of papers prepared by or on behalf of attorneys in anticipation of litigation. This protection in turn 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2012-09-20 Federal PA B 10/13

Chapter: 33.705

Case Name: In re Grand Jury, 705 F.3d 133, 151 (3d Cir. 2012)
("The attorney-client privilege protects from disclosure confidential communications made between attorneys and clients for the purpose of obtaining or providing legal assistance to the client."; "The work product doctrine, in contrast, 'promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.'" (citation omitted)).

Case Date Jurisidction State Cite Checked
2012-01-01 Federal B 8/13

Chapter: 33.705

Case Name: Yorktowne Shopping Center, LLC v. Nat'l Surety Corp., Civ. A. No. 1:10cv1333, 2011 U.S. Dist. LEXIS 52032, at *2 (E.D. Va. May 16, 2011)
("Work product privilege recognizes the need for privacy between a lawyer and client in the development of legal theories, opinions and strategies National Union Fire Insurance Co. of Pittsburgh, Pa., 967 F.2d 980, 983 (4th Cir. 1992).")

Case Date Jurisidction State Cite Checked
2011-05-16 Federal VA

Chapter: 33.705

Case Name: In re Outside Wall Tire Litig., Case No. 1:09cv1217, 2010 U.S. Dist. LEXIS 67578, at *6-7 (E.D. Va. July 6, 2010)
("The purpose of the work-product doctrine is twofold. First, it serves to prevent a party from benefitting unfairly from the time and money invested by opposing counsel in gathering facts relevant to litigation when those facts were ascertainable by the party. See In re Doe, 662 F.2d 1073, 1078 (4th Cir. 1981). Second, it safeguards the mental impressions and opinions of an attorney in order to ensure that the lawyer is 'free to advise clients and prepare their cases for trial without undue interference.' Id. at 1077. Neither rationale is implicated where, as here, the evidence in issue concerns the mental impressions not of an attorney, but the managing agent of a defendant. The opinion that Vance should not name Al Dobowi or the Kandharis does not appear to have belonged to any attorney. Indeed, to the contrary, Harjeev Kandhari notes in the same e mail that they 'are still waiting for our attorneys' to respond to the inquiry about the interrogatories. The opinion therefore belonged only to Harjeev Kandhari, and thus the work product doctrine does not apply.")

Case Date Jurisidction State Cite Checked
2010-07-06 Federal VA

Chapter: 33.705

Case Name: E.I. DuPont De Nemours and Co. v. Kolon Industries, Inc., Civ. A. No. 3:09cv58, 2010 U.S. Dist. LEXIS 36530, at *9-10 (E.D. Va. April 13, 2010)
("The work product privilege limits discovery of documents prepared in anticipation of litigation. The application of the work product privilege follows the foundational Supreme Court decision in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), as codified in Fed. R. Civ. P. 26(b)(3), and further explained in National Union Fire Insurance Co. v. Murray Sheet Metal Co.: 'Proper application of the work product rule requires recognition and accommodation of two competing policies. On the one hand, fairness in the disposition of civil litigation is achieved when the parties to the litigation have knowledge of the relevant facts, and therefore the discovery rules are given "a broad and liberal treatment." On the other hand, our adversary system depends on the effective assistance of lawyers, fostered by the privacy of communications between lawyer and client and the privacy in development of legal theories, opinions, and strategies for the client.' 967 F.2d 980, 983 (4th Cir. 1992) (quoting Hickman v. Taylor, 329 U.S. 495, 507, 67 S. Ct. 385, 91 L. Ed. 451 (1947)).")

Case Date Jurisidction State Cite Checked
2010-04-13 Federal VA

Chapter: 33.705

Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *7 (E.D. Va. Sept. 14, 2009)
("As the Advisory Committee noted when enacting 26(b)(3) in 1970, the substantial need inquiry 'reflects the view that each side's informal evaluation of its case should be protected, that each side should be encouraged to prepare independently, and that one side should not automatically have the benefit of the detailed preparatory work of the other side.'")

Case Date Jurisidction State Cite Checked
2009-09-14 Federal VA

Chapter: 33.705

Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at * 8, (E.D. Va. Sept. 14, 2009)
(addressing plaintiff's argument that it could overcome the state's work product protection for witness statements taken approximately one month after decedent died at a state-owned hospital; ". . . the Fourth Circuit has described the qualified immunity for fact work product as 'little more than an "anti-freeloader" rule,' National Union, 967 F.2d at 985 [National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980 (4th Cir. 1992)]")

Case Date Jurisidction State Cite Checked
2009-09-14 Federal VA

Chapter: 33.705

Case Name: Rush v. Sunrise Senior Living, Inc., No. CL-07-11322, 2008 Va. Cir. LEXIS 12, at *13 (Va. Cir. Ct. Feb. 12, 2008)
(addressing the privilege implications of a company's former CFO's request for a protected document from his former employer, against which he had filed a breach of contract and defamation action; "The policy rationale of the work product doctrine is not protection of the attorney client relationship, but rather enhancement of the integrity of the litigation process. See Hickman, 329 U.S. at 510-11.") [Woolridge, J.]

Case Date Jurisidction State Cite Checked
2008-02-12 State VA B 5/09 & 6/09

Chapter: 33.705

Case Name: Skibinski v. Lunger, 74 Va. Cir. 428, 432 (Va. Cir. Ct. 2008)
("[T]he work product doctrine protects an attorney from opening his files for inspection by an opposing attorney. Rakes v. Fulcher, 210 Va. 542, 172 S.E.2d 751 (1970).")

Case Date Jurisidction State Cite Checked
2008-01-01 State VA

Chapter: 33.705

Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *3 (W.D. Va. Nov. 8, 2005)
("It is premised on the notion that not even the most liberal of discovery theories can justify unwarranted inquiries into the files and the mental impressions of an attorney. Hickman v. Taylor, 329 U.S. 495, 510, 67 S. Ct. 385, 91 L. Ed. 451 (1947).")

Case Date Jurisidction State Cite Checked
2005-11-08 Federal VA

Chapter: 33.705

Case Name: Wilson v. Norfolk & Portsmouth Belt Line R.R., 69 Va. Cir. 153, 170-71 (Va. Cir. Ct. 2005)
(assessing the discoverability of an accident investigation report prepared by a railroad in connection with an accident in which plaintiff was injured; ultimately finding that the work product doctrine applied and could not be overcome; "[T]he primary justification for the doctrine is that it preserves the privacy of preparation that is essential to the attorney's adversary role. . . . Since each party has responsibility for presenting its own arguments, the adversary system fosters a competitive relationship that motivates each party to marshal all the law and facts beneficial to its case. . . . Since open discovery might have a tendency, in some cases, to deter an attorney from conducting thorough factual investigation, thus dulling the competitive relationship that encourages attorneys to develop legal theories and facts, the work product doctrine acts to revitalize the competitive relationship by creating a zone of privacy within which the attorney or investigator may work relatively free of the fear that his efforts will be discoverable. . . . This zone of privacy also removes disincentives to thorough preparation. Since some attorneys may hope to take advantage of their opponent's diligence without conducting their own investigation, there may develop a lack of commitment to independent investigation where no work product protection exists. . . . The absence of a work product doctrine might encourage laziness and a 'wait and see' attitude. Such an attitude may produce a corresponding disincentive by the opponent to thoroughly investigate and prepare. . . . Still other attorneys and investigators may, as a result of open discovery, devoid of work product protection, choose not to keep accurate records or conduct a thorough investigation for fear of their production in discovery. Such a result creates an inefficiency in the trial process.")

Case Date Jurisidction State Cite Checked
2005-01-01 State VA

Chapter: 33.705

Case Name: Wells v. Liddy, 37 F. App'x 53, 65 (4th Cir. 2002)
("Rather than protecting communications, however, the work-product privilege protects the attorney's trial preparations and allows him to 'assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.'")

Case Date Jurisidction State Cite Checked
2002-01-01 Federal

Chapter: 33.705

Case Name: Hodges v. Norfolk S. Ry. Co., 56 Va. Cir. 348, 350 (Va. Cir. Ct. 2001)
("The questioning of the expert witness concerning what that expert discussed with Plaintiff's counsel prior to the deposition would provide an unfair advantage to Defendant. The answer to such a question 'would reveal [Plaintiff's] counsel's trial tactics and thoughts by way of showing [Defendant] exactly what the [Plaintiff] feels is and is not important to his case.' Shanholtzer v. Dean, 51 Va. Cir. 493 (2000). It is permissible for counsel for Defendant to ask the expert witness what if any information he obtained from counsel for the Plaintiff that affected his expert opinion. If the information divulged by the expert is information or documents already in the possession of counsel for Defendant, then the inquiry is concluded. To allow any further questioning would invade Plaintiff's counsel's legal strategy, which parallels in substance his work product. 'Discovery was hardly intended to enable a learned profession to perform its function on wits borrowed from the adversary.' Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385, 34 Ohio Op. 395 (Justice Jackson, concurring) (1947).")

Case Date Jurisidction State Cite Checked
2001-01-01 State VA

Chapter: 33.705

Case Name: Concerned Citizens for Educ. Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 211 (Va. Cir. Ct. 1997)
("The court is further inclined to deny the petitioners' motion for a log of attorney work product documents. What the petitioners propose would defeat the purpose behind the court's exemption of those papers. The doctrine of attorney work product serves to shield from an adverse party the fruits of an attorney's labor in representing his client. A log of these documents revealing their nature would protect their contents no more than a court order to produce them would. The attorney-client relationship is the most fundamental one in the legal profession. This court will not be a party to any violation of the sanctity of that relationship and, consequently, will not grant the petitioners' motion.")

Case Date Jurisidction State Cite Checked
1997-01-01 State VA

Chapter: 33.705

Case Name: S.W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 243 (Va. Cir. Ct. 1993)
("The general purpose of this rule is to encourage prompt and thorough preparation by the attorneys and to avoid unfairness.")

Case Date Jurisidction State Cite Checked
1993-01-01 State VA

Chapter: 33.705

Case Name: Rakes v. Fulcher, 210 Va. 542, 547, 172 S.E.2d 751, 756 (1970)
("Where both parties have an equal opportunity to investigate, and where all the witnesses to the accident are known and available to both sides, discovery should not be granted."; explaining that "[d]iscovery procedures were not intended to open an attorney's files to opposing counsel; nor were they intended to afford an attorney the luxury of having opposing counsel investigate his case for him")

Case Date Jurisidction State Cite Checked
1970-01-01 State VA

Chapter: 33.706

Case Name: Woodard v. Victory Records, Inc., No. 14 CV 1887, 2014 U.S. Dist. LEXIS 69512 (N.D. Ill. May 21, 2014)
("This court agrees with Plaintiffs that any previous determination regarding confidentiality in the attorney-client privilege context is not dispositive of whether work-product protection applies to the documents at issue here. Attorney-client and work-product protections are two independent privileges which require separate analyses and reflect different policies. . . . Work-product protection is broader than attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2014-05-21 Federal IL

Chapter: 33.706

Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *14 (N.D. Ohio Aug. 8, 2013)
("The work product doctrine is broader, but less secure, than the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 33.706

Case Name: Brooks v. Mon River Towing, Inc., Civ. A. No. 11-1580, 2013 U.S. Dist. LEXIS 59417, at *9 10 (W.D. Pa. Apr. 3, 2013)
("Unlike the attorney-client privilege, which applies to any communication between a client and his or her attorney seeking legal advice, the work product protection is limited to preparation for litigation.")

Case Date Jurisidction State Cite Checked
2013-04-03 Federal PA B 3/14

Chapter: 33.706

Case Name: Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 619 n.273 (S.D. Fla. 2013)
(in a first party insurance setting, finding that an insurance company and its insured had a common interest that acted much like a joint representation, so there was no privilege when they later litigated against each other about coverage; "The work-product doctrine is more protective of privacy than the attorney-client privilege, as the doctrine applies to materials that would not be protected by the attorney-client privilege, such as witness statements notes, related to her representation of the client in litigation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal FL B 4/14

Chapter: 33.706

Case Name: State v. Lead Indus. Assoc., 64 A.3d 1183, 1192 (R.I. 2013)
("The work-product doctrine affords broader protection than the attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2013-01-01 State RI B 3/14

Chapter: 33.710

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 333 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; noting that documents that were not communicated to the client could nevertheless deserve work product protection; "Documents No. 41 and 46 are undated strategy notes composed by Dempsey's mother and father, respectively. Dempsey claims attorney-client privilege and work-product protection. With respect to these documents, Dempsey's objection to production shall be SUSTAINED. Based on the document descriptions in the privilege log and the Court's review of the document in camera, there is nothing to suggest that these documents themselves were communicated to Dempsey's counsel, nor that they contain references to any privileged communications within them. But, upon examination, it is clear that the documents themselves constitute opinion work product, prepared by Dempsey's parents acting as agents of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 33.711

Case Name: Dempsey v. Bucknell Univ., 296 F.R.D. 323, 333 (M.D. Pa. 2013)
(analyzing issues in connection with a student's criminal prosecution for an alleged sexual assault, which apparently was dropped; concluding that the student's parents were within the privilege as the student's lawyer's agent and as joint clients, but that the student adviser was outside the privilege and the work product protection; "Document No. 43 is an undated transcript of an interview of K.S. [student accusing plaintiff] by local police and University public safety officers, apparently conducted in the presence of another student and a University official. Portions of the transcript are highlighted. According to the privilege log, the highlighted portions are relevant to Dempsey's criminal case, and the highlighting was performed by Dempsey's father at the direction of Attorney Becker. . . . [I]t is clear that the document itself constitutes opinion work product, prepared by Dempsey's father acting as an agent of his attorneys to assist in the defense of Dempsey against criminal charges, which unquestionably constitutes litigation.")

Case Date Jurisidction State Cite Checked
2013-01-01 Federal PA B 5/14

Chapter: 33.712

Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 867 (9th Cir. 2014)
("The work product doctrine is a 'qualified immunity from discovery' that attempts to balance 'the necessity of protecting an attorney's preparation under the adversary system, and the policy of full and open discovery underlying the' rules.")

Case Date Jurisidction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 33.712

Case Name: Toensing v. United States Dep't of Justice, Civ. A. No. 11-1215 (BAH), 2013 U.S. Dist. LEXIS 162158, at *14 (D.D.C. Nov. 14, 2013)
("In applying the work product doctrine, the D.C. Circuit has instructed that, it 'should be interpreted broadly and held largely inviolate.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-11-14 Federal DC B 5/14

Chapter: 33.712

Case Name: In re Park Cities Bank, 409 S.W.3d 859, 867 (Tex. Ct. App. 2013)
("Under this rule, the work product privilege is broader than the attorney-client privilege because it includes all communications made in preparation for trial, including an attorney's interviews with parties and nonparty witnesses.")

Case Date Jurisidction State Cite Checked
2013-01-01 State TX B 4/14