Work Product Doctrine

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In order for the defense attorney to form a bond of trust with the client, the defense attorney must maintain confidential all communications with the client. The work product doctrine is one of two theories by which the confidentiality of communications with the client is protected. The second doctrine is the attorney-client privilege

Elements of the Work Product Doctrine

The work product doctrine protects statements, reports, notes, and other materials prepared by the criminal defense attorney in anticipation of, or during, litigation. Litigation need only be imminent and includes actions such as grand jury proceedings, investigations and administrative actions. [1]

The United States Supreme Court put forth this rationale for the work product doctrine:

"[The Work Product Doctrine] is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation It of a client's case demands that he assemble information, sift what he considers to be the relevant go from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.... This work is reflected of course, be in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways. . . .Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served."[2]

The work product doctrine is typically raised as a defense to a request for discovery from an opposing party such as the prosecutor or a collateral plaintiff in a civil action.

The work product doctrine is broader than the attorney-client privilege in that it protects additional materials that did not come about through client communication.

Work product can generally be classified as two types:

  1. Absolute Work Product - This type of work product involves the thoughts, impressions or strategies of a defense attorney. This is generally not discoverable and these materials are afforded heightened protection.
  2. Qualified Work Product - This kind of material may contain certain impressions that are not the attorneys. For instance, expert reports may be considered Qualified Work Product. This material is generally not discoverable unless the court determines that denial of discovery will:
    1. Unfairly prejudice party seeking discovery in preparing its claim or defense or
    2. Will result in an injustice

The following information does not constitute work product:

  1. pure facts
  2. witness statements
  3. identity of individuals with knowledge

Examples of the Work Product Doctrine

United States

Work product doctrine is described in Federal Rule of Evidence 502 which is binding on all Federal Courts in the United States.

See Evidence, Ethics and Professional Responsibility


  1. In re Grand Jury Proceedings, 867 F.2d 539 (9th Cir. 1989) (grand jury investigation) and In re Sealed Case, 676 F.2d 793 (D.C.Cir. 1982) (SEC and IRS investigations)
  2. Hickman v. Taylor, 329 U.S. 495 (1947)