Attorney Work Product Privilege

Overview

The work product doctrine states that an adverse party generally may not discover or compel disclosure of written or oral materials prepared by or for an attorney in the course of legal representation, especially in preparation for litigation. However, under Rule 26(b)(3) of the Federal Rules of Civil Procedure, an adverse party may discover or compel disclosure of work product upon a showing of "substantial need" and "undue hardship."

Hickman v. Taylor

The Supreme Court recognized the work product doctrine in Hickman v. Taylor, 329 U.S. 495 (1947). The Court clarified that the work product doctrine is a rebuttable presumption. Specifically, the Court clarified that there is a presumption that an adverse party may not have access to materials prepared by a party's lawyers in anticipation of litigation. The Court maintained that this presumption may be overcome when a party has relevant and non-privileged facts which would be essential to the preparation of the adverse party's case. 

In United States v. Nobles, 422 U.S. 225 (1975), the Supreme Court clarified that the work product doctrine can be used in both civil litigation and in criminal litigation. 

Further Reading

For more on the work product doctrine, see this Florida State University Law Review article, this St. John's Law Review article, and this National Law Review article