One issue that often arises for attorneys is who owns the documents created during the scope of a representation and to what extent such documents must be disclosed. If a representation concludes and a client asks for a copy of the "file," what documents are encompassed within that request? If an attorney receives a subpoena for documents related to a former client, must all attorney-generated documents be produced?
With respect to requests from a client or a client's new counsel, the issue is fairly straightforward when only pleadings, briefs and correspondence are sought. Complications may arise, however, if the client also seeks more attorney-created, nonpublic documents.
While the client file typically includes these materials, the client may also seek outlines or drafts, internal communications, memoranda, legal or other research, or even the attorney's handwritten notes. Depending on the jurisdiction, this type of request may compel the attorney or firm to consider whether and to what extent the client is entitled to documents that constitute "attorney" work product.
A similar challenge can arise in the context of third-party requests. For example, a law firm may receive a subpoena, demanding the ubiquitous "any and all" documents related to a particular representation. Again, the firm may need to decide what documents are specifically requested, whether there are categories of documents that should be withheld, or whether the firm should move to quash the subpoena (and potentially expend a great deal of time and money resolving the ensuing dispute).
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 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 steps many lawyers consider in evaluating requests for work-product materials.
Categorize work product
When a third party requests materials to which an attorney claims work product, it is helpful to identify what kind of work product the materials are. Generally, there are two distinct categories of attorney work product: "general work product" and "opinion work product."
General work product usually consists of documents and tangible things that are prepared in anticipation of litigation or for trial by the party or the party's representatives. Opinion work product includes only those litigation or trial preparation materials that contain the mental impressions, conclusions, opinions or legal theories of the party's lawyer or other representative in connection with the litigation.
This distinction is important because of the different privilege status assigned to each. General work product materials are typically subject only to a qualified privilege, meaning that a court may order them to be disclosed if the requesting party satisfies certain requirements, including that the requesting party has a "substantial need" of the materials and is unable to obtain the substantial equivalent of the materials by other means. O.C.G.A. § 9-11-26 (b)(3).
By contrast, courts have found that opinion work product is entitled to an absolute privilege and can be protected from disclosure in certain circumstances. O.C.G.A. § 9-11-26 (b)(3).
But a client's request for the production of the client file is not as straightforward. A majority of jurisdictions, including Georgia, have found that a document created by a lawyer belongs to the client who retained her. Swift, Currie, McGhee & Hiers v. Henry, 276 Ga. 571, 581 S.E.2d 37 (2003). As such, clients may argue that they are entitled to any document that the lawyer created during the representation.
Georgia cases have recognized certain exceptions to this rule: if the lawyer can demonstrate good cause to protect the documents from disclosure, such as when disclosure would violate the lawyer's duty to a third party, where the document assesses that particular client, where the relationship between client and attorney becomes adversarial, or where the lawyer's tentative preliminary impressions are documented for the purpose of facilitating the provision of legal services required by that representation.
Identify who creates work product
Determining whether certain materials are work product usually entails more than just a review of the content of the materials (and whether they are general or opinion work product). It also involves a review of who created them.
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 both general or opinion work product that is subject to some level of protection.
For example, in Georgia, a party's consultant, surety, indemnitor, insurer and agent may all create work product. O.C.G.A. § 9-11-26 (b)(3). In addition, the lawyer's employees who participate in the representation, such as assistants and paralegals, may also generate work product.
When it comes to experts, the inquiry is more complicated. 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.
As to nontestifying experts, their identity and the facts and opinions they hold are generally protected and need not be disclosed.
Be careful to avoid an inadvertent waiver
The work product doctrine usually protects the interests of both client and lawyer. Diligence may require an attorney to know the rules of the jurisdiction before disclosing or producing work products documents. Once the documents are produced, it may be difficult to "put the toothpaste back in the tube."
Although requests for work product documents from a client file are becoming more common, following these tips will help reduce the risks that might arise from trying to comply with such requests.
J. Randolph Evans and Shari L. Klevens are the authors of "Georgia Legal Malpractice Law," published by Daily Report Books.
As published by The Daily Report