The Attorney Work Product Doctrine and Unintended Waiver

Kristen Johnson, Law Clerk
Schwartz Semerdjian Ballard & Cauley LLP
Published:  04.01.2012

In the early stages of litigation, attorneys gather facts in an attempt to evaluate the strengths and weaknesses of their case.  If done carefully, this process protects the fruits of this labor from discovery under the attorney work product doctrine in both California and federal courts.  The work product doctrine promotes thorough preparation by both sides in a dispute.  However, this protection is not absolute.  Misinterpreting the parameters of the work product doctrine may result in inadvertent waiver of the work product protection.  Thus, it is critically important to understand how the work product doctrine functions in California state and federal courts.  This article examines the different approaches to the work product doctrine in the California and federal system, with specific attention given to inadvertent waiver of the protection through third party disclosure.  

California’s Protection of Attorney’s Work Product
California provides attorney work product protection through the Discovery Act and it contemplates two categories of protection.  CCP § 2018.018–2018.080.  Specifically, CCP § 2018.030 distinguishes between absolute and conditional work product protection afforded to attorneys.  Absolute protection is given to “[a]ny writing that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories.”  CCP § 2018.030(a); Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214.  Conditional protection is provided to any other work product which is discoverable if “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.”  CCP § 2018.030(b).  The statute does not define “work product” and individual courts are left to determine what constitutes an attorney’s work product on an individual case-by-case basis.  In re Jeanette H. (1990) 225 Cal.App.3d 25, 31.    

Comparison to Federal Protection of Attorney’s Work ProductThe federal work product doctrine is different than the California work product doctrine in two notable respects.  First, the California rule is more expansive.  It affords the work product protection to any document prepared by an attorney in connection with his or her work as an attorney, regardless of whether litigation is contemplated.  Rumac v. Bottomley (1983) 143 Cal.App.3d 810, 815.  The federal work product rule only covers materials “prepared in anticipation of litigation or for trial.”  FRCP 26(b)(3).  Second, where the California rule provides absolute protection to “[a]ny writing that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories,”  CCP § 2018.030(a), the Federal work product rule only offers qualified protection subject to a court’s interpretations.  Regular work product materials are discoverable in federal courts upon a showing of substantial need where the party seeking discovery cannot obtain equivalent materials without undue hardship.  FRCP 26(b)(3).  The Federal Rule provides as a limitation that “[ i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of any attorney . . . concerning the litigation.”  

Whether the attorneys work was conducted in a case that is subject to federal jurisdiction or not, he or she is still subject to a court finding that the work product should not be protected and thus that the attorney waived his or her rights.

Waiver of the Attorney Work Product Protection through Third Party Disclosure
The work product doctrine was created to protect attorneys and their efforts, so attorneys risk waiving the protection through their own actions.  See Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 101 (finding the work product protection is waived through the attorney’s acts). Waiver of the work product protection is not defined in statute and is generally found under similar circumstances as waiver of the attorney-client privilege: by failure to assert the privilege, by tendering certain issues, by conduct inconsistent with claiming the privilege, and by an attorney’s voluntary disclosure or consent to disclosure to a person other than the client who has no interest in maintaining the confidentiality of the information.  McKesson HBOC, Inc. v. Sup. Ct (2004) 9 Cal.Rptr.3d 812.  Attorneys risk losing the work product protection in both California and federal courts through their own actions.  

Waiver through an attorney’s disclosure of his or her work product to a third party should not be dismissed as a rookie mistake, especially in light of a recent Northern District of California decision.  In Ward v. Equilon Enterprises, LLC (N.D. Cal., July 13, 2011) 2011 WL 2746645 a federal district court applying California’s Discovery Act was asked to review a magistrate judge’s order permitting production of an investigative report prepared by the defendant’s attorneys.  Ward v. Equilon Enterprises, LLC (N.D. Cal., July 13, 2011) 2011 WL 2746645, at *1.  The plaintiff in the action was employed by the defendants’ contractor and he filed a complaint against the defendants for negligence and premises liability for work-related injuries.  Id.  Defendants’ counsel initiated an investigation of the action “in compliance with Cal-OSHA requirements codified in California Code of Regulations, Title 8 section 5189.”  Id.  Under section 5189(m), the incident investigation team was required to include a contract employee during its investigation, because the incident involved the work of a contractor.  Id. citing Cal. Code Regs. tit. 8, § 5189(m) (2011).  Defendants’ counsel included an employee of the Plaintiff’s employer on its investigative team to satisfy the Cal-OSHA requirement.  Id.  The plaintiff subsequently sought production of the investigative report.  Id. at *3.  Defendants objected to the production of the investigative report alleging that the report was protected under the attorney work product doctrine.  Id.  The magistrate judge found that the investigation and report were not subject to protection and were discoverable.  Id.  Defendants’ objected to the waiver on the grounds that the Plaintiff also had a worker’s compensation claim against its employer so the “companies ‘anticipated litigation against a common adversary on the same issue or issues,’ and that the [] investigation and report remain privileged because the companies had ‘strong common interests in sharing the fruit of the trial preparation efforts.’”  Id. at *4 citing United States v. Am. Tel. & Tel. C. (D.C. Cir. 1980) 642 F.2d 1285, 1299.  In affirming the magistrate judge’s decision, the district court found that the Defendants’ inclusion of a third party’s employee on the investigation constituted a voluntary disclosure of the investigation and report because the Plaintiffs employer was not a party in the instant litigation and his recovery against his employer for his worker’s compensation claim was not contingent on a finding of liability for the instant litigation.  Id.  

The defendants’ attorneys in Ward were not able to maintain the work product protection of their investigative report because they utilized a third party during their compilation.  The protection was not saved because the involvement of the third party was in compliance with Cal-OSHA requirements, nor was it saved under the reasoning that the third party had an incentive to maintain the confidentiality of the information because of the parallel worker’s compensation action.  Contra Laguna Beach County Water Dist. v. Superior Court (2004) 124 Cal.App.4th 1453, 1459 (holding that “disclosure operates as a waiver only when otherwise protected information is divulged to a third party who has no interest in maintaining the confidentiality ... of a significant part of the work product.”) (emphasis added; citations omitted).  

Though the Ward decision was made at the district court level, and is therefore not binding on California courts, it should still give pause to attorneys creating their own work product.  A court might be persuaded that disclosure to a third party not involved in the instant litigation automatically waives the work product doctrine, thus making it difficult to protect thorough attorney investigations.   Attorneys should continue to be cautious with preparing their work product and be sure to label such work accordingly.  It may or may not be clear what jurisdiction is applicable, so understanding the parameters to both California and the Federal work product doctrine is an important preliminary step to protecting all attorney work product from the outset.  California’s broader protections may not be as comforting if a case is ultimately removed to federal court.  Moreover, no matter what jurisdiction a case ends up in, unintentional disclosure of attorney work product could damage any case.