Client Confidentiality · 6-12% of the exam
6.3.1Ordinary and opinion work product
Why
Building a case takes work, and a system in which either side could subpoena the other's preparation would reward whoever prepared least. The doctrine keeps that incentive from forming, and it guards most tightly the part of the file that is the advocate herself — how she reads the case.
Plain English
The doctrine covers material prepared in anticipation of litigation or for use in litigation, and the preparer need not be a lawyer: an investigator, paralegal, consultant, or other agent working on the client's behalf counts equally. Ordinary work product is protected unless the opposing party demonstrates both substantial need and inability to gather equivalent material without undue hardship.
The lawyer's mental impressions, opinions, legal conclusions, and theories are absolutely immune and must be redacted. The attorney waives — unlike privilege, which only the client can waive by revealing the communication — and waiving ordinary work product doesn't waive opinion work product; the attorney's mental impressions remain protected.
Work-product doctrine — scope and tiers:
Five points, and the fourth is the tier that survives the showing in the third:
- Scope: Material prepared in anticipation of litigation or for use in litigation.
- Who may create it: Work product need not be created by a lawyer — investigators, paralegals, consultants, or any other agent working on the client's behalf may create it, and the doctrine protects that material equally.
- Ordinary work product: Protected unless the opposing party demonstrates BOTH
- (1) substantial need for the material AND
- (2) inability to gather equivalent material without undue hardship.
- Opinion work product (absolutely immune): The lawyer's mental impressions, opinions, legal conclusions, and legal theories. Can't be overcome even by a combined substantial-need-and-hardship showing. Must be redacted from any court-ordered production.
- Who waives: The attorney (unlike privilege, which only the client can waive by revealing the communication). Waiving ordinary work product doesn't waive opinion work product; the attorney's mental impressions remain protected.
The exam will say that a substantial-need-plus-hardship finding forces all work product into the open. Only the ordinary tier turns over on that showing. Opinion work product remains absolutely immune and must be redacted from any court-ordered production of ordinary materials.
Questions · 2
Q 01ch06-e09
Question 1 of 2 · Rule 1.6
Attorney defended Client in a suit over a scaffolding collapse. Weeks after the collapse, with trial plainly coming, Attorney hired Investigator to find and question the crew members who had been on the site that morning. Investigator wrote up a plain factual account of what each worker described, adding no comment of his own about the case. One of those workers has since moved overseas, cannot be located for a deposition, and is the only person who looked at the tie-in bolts before the fall. Plaintiff sought the account, showing both a real need for it and no other way to obtain equivalent material. Must the court order production of the account?
Keys 1 to 4 choose.