What is Work Product and How Does it Protect You?

When something happens at work, or when you have conversations with people, the age-old mantra (and good legal advice) is to document everything. But sometimes, we have to document events that we wouldn’t want everybody seeing–in fact, the truth and the facts of a given conversation or event may actually get us into legal trouble if anybody found out about them.

The good news is that you don’t have to worry about that because of what is known as the work product doctrine. Work product, as a general rule, cannot be discovered by the other side in a lawsuit–it is privileged, and does not have to be turned over, even if requested.

So, what is Work Product?

Work product is any document prepared for, or in anticipation of, litigation or trial.

This information is private because the law wants to encourage people to document information without fear that that documentation will come back to haunt them. The law also recognizes that businesses need to have the freedom to document things that happen in their business, and if that documentation could cause damage, businesses would be discouraged from doing it.

Anticipation of Litigation

Documents made or compiled ordinarily in the normal course of business, or for some other purpose not related to litigation, are not private and privileged. Any document prepared in anticipation of litigation is private. But what does that actually mean?

There doesn’t have to be an actual lawsuit or claim filed–some courts have said that all that is needed is a reasonable belief that the event could result in litigation for privilege to apply.

So, for example, if an employee makes a report about sexual harassment, even though he or she hasn’t filed any actual lawsuit against you, the report you take would be protected–sexual harassment leads to litigation, so it is reasonable to expect that the report is being taken for that reason.

Other courts, however, have said that the mere belief that litigation could ensue from an event is not enough to be “anticipation of litigation,” and thus, there needs to be an actual belief that a claim, demand, or lawsuit is pending.

Opinion Work Product

Parties also cannot request the opinions of your lawyer, as those are also protected under the work product doctrine. Of course, any direct communication between you and your attorney would be protected by the attorney-client privilege anyway–but sometimes your attorney might prepare documents or create notes or explore ideas or communicate with third parties that aren’t communicated to you, and thus, are not covered by the attorney-client privilege. Yet, they are safe under the work product doctrine.

The same goes for expert opinions that your attorney obtains. So long as you aren’t using them in trial, the other side cannot obtain the opinions or reports of experts hired by your attorney to investigate your case.

Call our West Palm Beach commercial litigation attorneys at Pike & Lustig for help with your commercial litigation case.

Source:

floridabar.org/the-florida-bar-journal/the-work-product-privilege-in-a-nutshell/