Pictured, from left, are Alanna Clair and Shari Klevens. |

Requests for Attorney Work Product in Client Files

It is not uncommon for an attorney to receive a request for a client's “file.” It could happen after a client changes attorneys, when a third party issues a subpoena, or, unfortunately, when the client is reviewing their rights to pursue a legal malpractice claim. Whatever prompts the request, determining an appropriate response can be difficult. Today's legal representations can generate voluminous files, containing much more than the old school series of folders with labels such as “Correspondence” and “Pleadings.” The rise of email and an endless amount of devices on which an attorney may conduct business has left the question of what constitutes the “file” open to interpretation. Various jurisdictions take different approaches to the issue. One issue that can arise is the extent to which the client is entitled to attorney-created, nonpublic documents. Indeed, the client may ask the attorney to provide all outlines or drafts, internal communications, memoranda, legal or other research, or even the attorney's handwritten notes. Accordingly, the attorney or firm may be required to consider whether and to what extent the client is even entitled to documents that constitute attorney work product. In evaluating requests for the production of work product materials—whether by clients or third parties—it is helpful to understand the basic parameters of the work product doctrine. Since the doctrine's inception in the U.S. Supreme Court's seminal case of Hickman v. Taylor , the work product doctrine has evolved at both the federal and state levels. The following are some issues to consider in evaluating requests for work product materials. |

Determine the Scope of Work Product

Unlike many other jurisdictions, the California Rules of Professional Conduct provide a starting point for analyzing what constitutes the client file. Rule 3-700(D) provides that, upon termination of a representation, the attorney shall, “[s]ubject to any protective order or nondisclosure agreement, promptly release to the client, at the request of the client, all the client papers and property.” The rule then defines the phrase “client papers and property” as including “correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not.” While this definition is helpful in some respects, it does not explicitly address whether work product is included in the definition of “client papers and property,” other than to leave it to the attorney to consider what items might be “reasonably necessary to the client's representation.” In evaluating the extent that work product materials should be returned to the client or disclosed to third parties, it is helpful to consider the kind of work product at issue. This is because California law affords two different levels of protection to work product: absolute or qualified. With respect to the absolute privilege, California law provides that “[a] writing that reflects an attorney's impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances.” Cal. Code of Civ. Pro 2018.030(a). Courts take the protections for absolute work product very seriously. Generally, attorneys are not obligated to turn over absolute work product. Any work product not within this definition ( e.g. , qualified work product) 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 of Civ. Pro 2018.030(b). Separate from the determination of whether the file contains absolute or qualified work product, the issue is even more complicated in the context of a request by the client for the return of her or his file. Indeed, jurisdictions are split on whether the work product doctrine shields documents from production to a client or former client. For example, in some jurisdictions, purely internal memoranda, non-substantive communications, or drafts are considered the property of the attorney or law firm and need not be produced to a client who is seeking the “client file.” On the other hand, some jurisdictions view the client file as essentially the property of the client, supporting a conclusion that the work product doctrine does not shield documents from production to the client in the same manner. Similarly, CCP 2018.080 states that “In an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.” |

Identify Who Creates Work Product

Depending on the nature and scope of the representation, many different people could have a role in creating work product material. The most obvious are the client and the lawyer who represents her. However, other individuals affiliated with the client and lawyer, and those who are retained in connection with a representation, may generate work product that is subject to some level of protection. For example, the lawyer's employees who participate in the representation, such as assistants and paralegals, may generate work product. However, the inquiry is more complicated for expert witnesses. Under the Federal Rules, for example, the answer lies in whether the expert will testify at trial or whether the expert is retained as a consultant. If the former, the work product doctrine may not protect the facts known or opinions held by those experts. After all, the purpose of retaining a testifying expert is to use his or her opinions, and therefore the facts used to form those opinions, at trial. |

Watch Out for an Inadvertent Waiver

The work product doctrine is of course less effective in protecting the interests of either the client or the lawyer when the documents have already been produced. Thus, it is helpful for attorneys to remain apprised as to the rules of the jurisdiction before disclosing documents that are arguably entitled to work product protection. Although it can be difficult to determine an appropriate response to requests for work product documents from client files, understanding the relevant legal issues can help limit any associated risks. Shari L. Klevens is a partner at Dentons U.S. and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons' global insurance sector team, and is co-author of "California Legal Malpractice Law" (2014). Alanna Clairis is a partner at Dentons U.S. and focuses on professional liability defense. Klevens and Clairis are co-authors of "The Lawyer's Handbook: Ethics Compliance and Claim Avoidance."