The Work Product Doctrine in California (2024 Guide for Litigation Attorneys)

The Work Product Doctrine Overview 

The work product doctrine is a fundamental aspect of California law that protects certain materials from disclosure or discovery in civil litigation. This article will delve into the principles and requirements of this doctrine, specifically covering the types of materials protected as work product, persons who may claim work product protection, exceptions to the work product doctrine, and waiver of work product protection.

Work Product Protection Purpose

The work product doctrine, codified in California law under Cal. Code Civ. Proc. § 2018.010 et seq., serves two primary purposes: preserving the rights of attorneys to prepare cases for trial with necessary privacy and preventing attorneys from taking undue advantage of their adversary’s industry and efforts. Although the statute appears to apply only to discovery proceedings, courts have held that it also shields work product from disclosure at trial and extends to criminal proceedings.

What is Protected by the Work Product Doctrine?

In California, the work product doctrine provides two types of protection for attorney work product: absolute and qualified.

Absolute protection covers “a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.” (Cal. Code Civ. Proc. § 2018.030(a)) Qualified privilege covers the other work product of an attorney and “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Cal. Code Civ. Proc. § 2018.030(b))

Who Owns the Protection?

Work product protection is a type of privilege that belongs to the attorney and may be claimed or waived by the attorney. However, it may also be claimed by the client on behalf of the attorney in the attorney’s absence. Additionally, a litigant acting in propria persona may assert the statutory work product protection on their own behalf.

Exceptions to Work Product Protection

Work product protection does not apply in certain circumstances, including actions between attorneys and clients involving breach of attorney’s duty, official investigations or proceedings involving alleged participation by attorneys in crime or fraud, and State Bar disciplinary proceedings.

Waiving the Protection

Work product protection may be waived through various means, such as disclosure or consent to disclosure, failure to assert the protection when the opportunity arises, placing certain matters at issue, or engaging in conduct inconsistent with claiming the privilege. Inadvertent disclosure of work product does not necessarily waive the protection, but receiving attorneys must act ethically and responsibly in such situations.

Conclusion

The work product doctrine is a vital component of California law that safeguards the attorney-client relationship and ensures that attorneys can effectively prepare for litigation. By understanding the principles and requirements of this doctrine, litigation attorneys can better navigate the complexities of the legal system and protect their clients’ interests.

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