The Work-Product Doctrine Might Not Protect Your Attorney's Work Product

Last summer, in United States v. Textron Inc., 577 F.3d 21 (1st Cir. 2009), a divided en banc panel of the U.S. Court of Appeals for the First Circuit adopted a dramatically narrow view of the work-product doctrine, under which only documents that are prepared “for use” in litigation would be shielded from disclosure. The decision left lawyers and clients alike concerned about the continued vitality of the work-product doctrine, particularly as it applied to so-called “dual purpose documents” that are prepared for both litigation and business purposes. On May 24, the U.S. Supreme Court denied certiorari, thus leaving intact both the First Circuit’s opinion and the discomfort it caused. By refusing to wade into the debate, the Supreme Court also left unresolved a split in the federal courts that inspired the dissenting judges in Textron to invite the Court to “intervene and set the circuits straight on this issue which is essential to the daily practice of litigators across the country.” Until the Supreme Court takes up this invitation, however, it is incumbent upon lawyers to understand both the “qualified” nature of the work-product doctrine in general, and the specific tests that courts will apply to determine which types of documents are subject to its protections.

The Supreme Court first recognized the work-product doctrine more than 60 years ago in Hickman v. Taylo r, 329 U.S. 495 ( 1947). That lawsuit arose out of the sinking of the tug J.M. Taylor , during which five of the nine crewmembers on board drowned. Shortly after the accident, the tug owners’ counsel set out to interview all relevant witnesses, and obtained signed statements from many of the survivors. Eventually, the families of all five deceased crewmembers sued. While four of these lawsuits settled out of court, the plaintiff in the fifth lawsuit refused to settle, and, during discovery, demanded copies of all of the statements that the tug owners’ lawyers had obtained during their investigation. The law firm refused, but the trial court ordered that the statements be produced. When the firm again refused, the court “adjudged [the attorneys] in contempt and ordered them imprisoned until they complied.”