attorney work product privilege

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The work-product privilege (or “work-product doctrine”) protects from discovery by the opposing party "documents and tangible things that are prepared in anticipation of litigation or for trial." Federal Rule of Civil Procedure 26(b)(3)(A). The purpose of the work-product doctrine is to protect an attorney's "mental impressions, conclusions, opinions, or legal theories." See City of Fort Collins v. Open Int'l, LLC (D. Colo. 2022). 

In federal court, Rule 26(b)(3) contemplates a sequential step approach to resolving attorney-work product privilege issues:

  • First, the party seeking discovery must show that the subject materials are relevant to the subject matter involved in the pending litigation and are not privileged.  
  • Once such a showing has been made, the burden shifts to the party seeking protection to show that the requested materials were prepared in anticipation of litigation. 
    • Such a showing may be made by affidavit, deposition testimony, or other responses to discovery.  
  • If the court concludes that the items were prepared in anticipation of litigation, the burden shifts back to the requesting party to show a substantial need for the materials in the preparation of the party's case, and the inability without undue hardship of the requesting party to obtain the substantial equivalent of the materials by other means. 

See Martin v. Monfort, Inc., 150 F.R.D. 172, (D. Colo. 1993).

The attorney-work product privilege can be waived when counsel discloses the work product or materials to a third party in a way that creates a likelihood that a potential adversary in the anticipated litigation will obtain it. See U.S. v. Stewart, 433 F.3d 273 (2d Cir. 2006). 

The attorney-work product privilege differs from the attorney-client privilege.  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.  

Under Rule 26(b)(4)(C), communications between the party’s attorney and their retained testifying expert witness are protected under the attorney-work product privilege, except as those communications relate to: 

  • Compensation for the expert's study or testimony
  • Identify facts or data that the party's attorney provided and that the expert considered in forming the opinions to be expressed; or
  • Identify assumptions that the party's attorney provided and that the expert relied on in forming the opinions to be expressed. 

In any case where a testifying expert prepares a report, the expert report is discoverable. However, drafts of the report are protected as attorney-work product privilege under Rule 26 (b)(4)(B).

[Last updated in August 2023 by Jim Robinson, Esq., JurisPro Expert Witness Directory]