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Attorney’s work product is the work done by an attorney on a case, which is privileged and not included in discovery. It includes lists of questions, analysis, and notes that provide insight into the case’s strategy. The distinction between work product and general information is made on a case-by-case basis.
Attorney’s work product refers to the work that an attorney has done on a given case. The concept is important in litigation when the discovery process is underway. Discovery refers to the sharing of information between adverse parties in a lawsuit.
When two people are on opposite sides of a judicial proceeding, whether in criminal or civil matters, sharing of evidence must take place. In a criminal law case, the prosecutor must share evidence with the defendant so that he can build a defense, although the defendant does not have to share his own evidence. In a civil case, both the plaintiff and the defendant have to share evidence with each other about their respective cases.
However, discovery is not an absolute right. First, in a civil case, each party must request the information they want from the other. The information must be directly relevant to the case and must not be inside.
Because of the privilege, work done by an attorney on a case is not included in discovery. This attorney’s work product may include lists of written questions that an attorney has for the other party, an attorney’s analysis of the case, attorney’s notes about a particular document or particular piece of evidence, or any another thing where the attorney provided insight that provides insight into the strategy of the case.
The lawyer’s work product becomes especially important when there is a limitation on some specific evidence available. For example, suppose an attorney deposes, or formally questions, someone who could prove to be a relevant witness to both the plaintiff and the defendant. If the witness dies the next day, the other party can request attorney transcripts of that interview. Whether the interview transcripts need to be turned in will depend on whether they are considered a product of the lawyer’s work or not.
The distinction between attorney’s work product and general information is often made on a case-by-case basis. While some things, like the attorney’s trial notes, are clearly a product of the work, other things are less clearly defined, like deposition transcripts or the report of a private investigator working on the case. In general, the rule is that if the material has been prepared with an eye to litigation – even if it has not been prepared directly by an attorney but has been prepared by someone working for or hired by the attorney or client – it is privileged and so it doesn’t have to share with the opposing side.
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