The attorney’s work product doctrine protects tangible and intangible material prepared by a lawyer in anticipation of litigation. It includes inter-office memorandums, notes, and voice-taped notes. The protection also extends to non-legal parties. The doctrine has limitations and may not apply if the other litigant cannot obtain the substantial equivalent of the protected material by other means. The policy ensures that parties receive competent and knowledgeable advice.
The attorney’s work product doctrine is a concept within civil procedure that protects the attorney’s work product from discovery by the other litigant. Work product is defined as any tangible material or its intangible equivalent prepared by a lawyer in anticipation and preparation for litigation. The work product doctrine is limited and the work product may be identifiable if the other litigant demonstrates that the facts are necessary to substantiate the claim and he has no other means of obtaining that information without suffering undue hardship.
There are many things that fall within the scope of the attorney’s work product doctrine. These could be inter-office memorandums, briefs, notes written by an attorney about the case, and even voice-taped notes made in preparation for the case. Protection under the labor product doctrine also extends to paralegals, secretaries, and other non-legal parties acting under the control of the attorney handling the case. As long as the information was recorded with the reasonable intent to prepare for litigation, it applies.
There is also the question of what “in anticipation and preparation for litigation” actually means. In the context of attorneys’ labor product doctrine, the phrase typically refers to any point where there is a reasonable expectation that a complaint will be filed. This is entirely context dependent and varies from situation to situation. In a personal injury case, for example, it could strike at the exact moment the injury occurs.
There are also limitations to the lawyer’s work product doctrine. If the information is necessary for the other litigant’s case preparation and they are unable to obtain the substantial equivalent of the protected material by other means, the work product doctrine may not apply. In the event of a witness’s unavailability for any reason, the other litigant may waive protection and admit any notes that the attorney recorded during interviews with the witness.
The politics behind the lawyer’s labor product doctrine is simple. If attorneys were to consider that the notes they take in preparing for litigation could possibly harm their client in the process, then their ability to prepare would be hampered. The policy is in the interest of ensuring that the parties involved receive the most competent and knowledgeable advice possible.
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