What is an Attorney Work Product?

Attorney work product refers to work that an attorney has done on a given case. The concept is important in litigation when the process of discovery is taking place. Discovery refers to the sharing of information between adverse parties in a lawsuit.

When two individuals are on opposite sides of a court case — either in criminal or in civil law — sharing of evidence must occur. In a criminal law case, the prosecutor must share evidence with the defendant so he may build a defense, although the defendant does not have to share his own evidence. In a civil case, both the plaintiff and defendant have to share evidence with each other about their respective cases.

Discovery is not an absolute right, however. First, in a civil case, each side must request the information it wants from the other. The information must be directly pertinent to the case and must not be privileged.

Because of privilege, work that an attorney has done on a case is not included in discovery. This attorney work product can include lists of written questions that an attorney has for the other side, an attorney's analysis of the case, the attorney's notes on a given document or given piece of evidence, or anything else in which the attorney has set forth information that gives insight into the strategy of the case.

Attorney work product becomes particularly important when there is a limitation on some specific piece of evidence available. Assume, for example, that one attorney deposes, or formally interviews, someone who could prove to be a relevant witness for either the plaintiff or defendant. If the witness then dies a day later, the other side may request the attorney's transcripts of that interview. Whether the interview transcripts will have to be turned over will depend on whether they are considered attorney work product or not.

The distinction between attorney work product and general information is often made on a case-by-case basis. While some things, such as the attorney's trial notes, are clearly work product, other things are less clearly defined, such as the transcripts of a deposition or the report of a private investigator working on the case. Generally, the rule is that if the material was prepared with an eye toward litigation — even if it was not prepared directly by an attorney but was prepared by someone working for or hired by the attorney or client — it is privileged and thus does not have to be shared with the opposing side.