Is work product an absolute privilege?
Asked by: Felicity Hyatt | Last update: September 4, 2025Score: 4.7/5 (30 votes)
In addition, work product protection is not absolute. An adversary may obtain certain kinds of work product by showing substantial need. As with the attorney-client privilege, work product protection may also be waived.
What is the legal privilege of the work product?
While the attorney-client privilege only applies to communications between an attorney and the client, the attorney-work product privileges can include materials prepared by persons other than the attorney themselves, provided those materials were created to prepare for litigation.
What is the difference between qualified and absolute work product?
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. Qualified Work Product - This kind of material may contain certain impressions that are not the attorneys.
What is considered a work product in insurance?
The work-product doctrine now encompasses “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,”3 and a party's representative can be its attorney, but it also can be its insurer, employee or other agent.
How do you assert work-product privilege?
In order to fall within the fact work-product privilege, documents and tangible things must be prepared in anticipation of litigation or for trial. Courts recognize that it is often difficult to determine what is and what is not prepared in contemplation of litigation.
Privilege and Work Product Doctrine
Is work-product privilege an absolute privilege?
In addition, work product protection is not absolute. An adversary may obtain certain kinds of work product by showing substantial need. As with the attorney-client privilege, work product protection may also be waived.
What is an example of a work-product privilege?
Usually, an opposing party may not discover or compel disclosure of work product. As examples, it can be a client's description of the events or facts when seeking legal advice; exchanges between lawyer or client investigating the facts; and the actual legal advice given.
How to waive work product privilege?
Work product protection may be waived through various means, such as disclosure or consent to disclosure, failure to assert the protection when the opportunity arises, placing certain matters at issue, or engaging in conduct inconsistent with claiming the privilege.
What is the difference between attorney work product and attorney-client privilege?
The work product doctrine differs dramatically from the attorney-client privilege. The privilege is old, asserts a grand purpose, is absolute but fragile. The work product doctrine is new, serves a narrow purpose, is not absolute and not fragile. Communications or documents can be protected by both protections.
What is an example of a work product?
Work Product means the tangible or intangible results of Grantee's Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts.
What are the two types of work product?
There are two kinds of work product – “Brain Work” and everything else. Brain work is not discoverable. A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (Code Civ.
Are photos an attorney's work product?
Fact work product protection can cover purely factual documents, photographs, test results, etc. Opinion work product can protect documents that contain or reflect lawyers' or other client representatives' opinions.
Are witness names work products?
As for the identity of witnesses, the court held that, although such information is not automatically protected work product as a matter of law, in some cases disclosure may show an attorney's tactics or may result in opposing counsel taking unfair advantage of his opponent's efforts, so that either the absolute or ...
Who owns the work-product privilege?
Even though the attorney client privilege and the work product doctrine are similar in many ways, the holders of these privileges are distinct. Rather than the client, the attorney is the holder of work product protection.
What is the work product doctrine in the UK?
In the UK, the doctrine is known as “litigation privilege” and originates from common law. The work product doctrine protects documents prepared during or in anticipation of litigation from discovery by opposing counsel.
Is work a right or privilege?
The Universal Declaration of Human Rights states in Article 23.1: (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Is attorney-client privilege absolute?
Attorney-client privilege varies from state to state. Some states, such as California, do not require an attorney to reveal any information, even if death or injury may result. Before making disclosures to your attorney, you should ask about these legal issues.
How to label an attorney work product?
Label privileged communications and attorney work product as such. In top line write “Attorney-Client Privileged Communication,” “Confidential” and/or “Attorney Work Product,” and set it off with capital letters, bold or different font color. Conversely, do not over-label.
What is an example of a fact work product?
This federal rule provides qualified protection to documents and other things prepared in anticipation of litigation, sometimes referred to as “fact work product.” An example of fact work product would be a witness statement taken by an attorney verbatim that does not include an attorney's thoughts.
What is work product exclusion?
Simply put, the job itself is not covered, but the resulting peripheral damage or bodily injury to a third party may be covered under the business owner's policy.
Which of the following would be considered a work product?
Work product protection generally extends to “derivative” material, or anything created by or derived from an attorney's work on behalf of a client that reflects the attorney's evaluation or interpretation of the law or facts involved. Anything that's purely evidentiary is not protected.
What is a work product description?
A work product is a description of content elements that are used to define anything used, produced, or modified by a task. A Work Product is an abstract concept which provides a generalization for the concrete work product types Artifact, Outcome, and Deliverable.
What is the difference between privilege and work product?
While the attorney-client privilege deals with communications made for purposes of the representation, the work product doctrine deals with the attorney's mental impressions and work made to further the representation.
Can you waive work-product privilege?
WAIVER-The work product privilege can be waived by disclosure. Work product privilege is broader than the attorney/client privilege because its purpose is to protect the adversary process.
What is a work product example?
Ordinary work product is documents or facts outside of the attorney's mental impressions. An example of ordinary work product is a bank statement.