A question many practitioners may face is who “owns” the documents and other material made and stored during the course of a representation: the client, the attorney or the attorney’s law firm? The answer to that question may dictate whether or when and to whom such information must be disclosed.
This issue can be even more complicated when considering requests for the file—from a client or third party—with regard to work-product materials created by the attorney during the course of the representation. Unlike communications that may be protected by the attorney-client privilege, the work-product doctrine, as recognized by the U.S. Supreme Court in Hickman v. Taylor, generally relates to materials that reflect the attorney’s thoughts, observations, strategy, or other mental processes.
It is fairly routine for a client or a client’s new counsel to request the pleadings, briefs and communications from the client file. Typically, this is a fairly straightforward issue. But it can become complicated if the client also requests production of nonpublic documents, including the attorney’s own work that may otherwise be protected by the work-product doctrine.
Indeed, former or current clients may make a demand for all material from their files, including outlines, drafts, memoranda, legal research and at times the attorney’s written or transcribed notes. In receiving such a request, lawyers can consider the following issues in determining which materials are part of the client file and which files lawyers may be permitted to withhold.
Identify the Author of the Work Product
A first step that can help shape the inquiry is to identify the “author” of the materials at issue.
Generally, most documents in the client file will have been created by one of two individuals: the attorney or the client. In other cases, different types of representations may involve an array of people that had a role in creating work-product documents.
Connecticut is unique in limiting the scope of work-product protection. Connecticut courts have declined to extend the work-product privilege to statements from nonattorneys, such as real estate appraisals and witness statements. In other circumstances, courts have found an investigator’s file is protected by the privilege. An expert’s work product can be even more complicated, as court decisions have split over whether an expert’s draft reports or communications are protected by the work-product privilege.
When determining which documents and material in the client file is protected, therefore, many attorneys will take the first step of identifying who created the work product.
Classifying Work Product—General or Opinion
After identifying the individual that created the work product, a second consideration is what type of work product is at issue. In many instances, attorneys discussing or reviewing attorney work product will characterize it as one of two types: (1) “general” work product or (2) “opinion” work product.
Documents and tangible things prepared in anticipation of litigation by the party or party’s representatives are usually considered to be general work product. This typically involves the recordation or preservation of data (such as an impartial written summary of a witness statement, without analysis of that statement’s relevance or impact), rather than the attorney’s strategy or thoughts about the evidence at issue. On the other hand, opinion work product generally relates to litigation or trial preparation materials that contain the mental impressions, conclusions, opinions, or legal theories tied to the at-issue litigation by the party’s lawyer or other representative.
In determining whether work product is general work product or opinion work product, a court may conduct an in camera review to ascertain the purpose for the materials. Notably, opinion work product is generally afforded absolute protection from production to third parties. Practice Book Section 13-3(a). But the protection afforded to general work product can be overcome in some circumstances by a third party’s showing of substantial need. Id.
When an attorney is requested to produce to a client certain work-product materials, as opposed to a request from a third party, it can be a tricky issue. Rule 1.16(d) of the Connecticut Rules of Professional Conduct generally call on attorneys to “surrender papers and property to which the client is entitled,” noting that “[t]he lawyer may retain papers relating to the client to the extent permitted by other law.”
Courts nationwide are split regarding whether work-product materials prepared by an attorney during the scope of the representation belong to the client. Informal Opinion No. 03-02 has suggested that attorneys are permitted to withhold work product and notes from a file turned over to the client’s new attorneys.
Take Steps to Prevent Inadvertently Waiving the Privilege
Similar to the attorney-client privilege, the work-product protection can be waived. Generally, whether a waiver of the work-product protection has occurred depends on whether the protected documents or material were disclosed in a way that would not maintain their secrecy from an opposing party. Thus, typically parties may share work product materials with those with whom they share a common legal interest without risk of a waiver, but disclosure to others may result in a waiver.
Notably, it can be harder for attorneys to argue after disclosure has occurred that the work-product privilege was not waived. Thus, many attorneys facing this issue will give additional consideration to whether work-product materials can be redacted or modified, or whether a shared legal interest should be documented in an agreement with a third party, to help preserve protection in the event that the material is shared in a limited universe for a strategic purpose.
Alanna Clair is a senior managing associate at Dentons and focuses on professional liability defense. Shari Klevens is a partner at Dentons and serves on the firm’s U.S. board of directors. Clair and Klevens are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”