Who Holds the Work Product Privilege?

Alison K. Adelman, Esq.
Schwartz Semerdjian Cauley & Moot LLP
Published 11.01.2017

The attorney work product doctrine is a concept well known to the majority of the legal community. New and seasoned attorneys alike are aware that the work product privilege, along with the attorney client privilege, is often asserted during discovery to prevent disclosure of confidential information. Protection of both attorney client communications and attorney work product during discovery are critical to an attorney’s zealous representation of the client. What most attorneys also know is that the client is the holder of the attorney client privilege, and therefore has the choice of whether and when to assert or waive it. The same cannot be said for the work product doctrine; fewer attorneys are familiar with who actually holds the work product privilege. A recent California Appellate Court decision clarified the answer.

Overview of the Attorney Work Product Doctrine

In 1947, the United States Supreme Court first recognized the idea that certain work product of an attorney should be protected from disclosure. “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor (1947) 329 U.S. 495. “Were such [private] materials open to opposing counsel on mere demand . . . [t]he effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id. at 510-511; see also Coito v. Superior Court (2012) 54 Cal.4th 480, 489-490.

In response to Taylor and its progeny, the California legislature codified the attorney work product doctrine[1] in 1963. The current version of the statute is very similar to the original and states the following: “(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (b) The work product of an attorney, other than a writing described in subdivision (a), 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.” Code Civ. Proc. § 2018.030.

As is evident from the statute, the attorney work product privilege recognizes certain work product as being absolutely protected: writings containing the attorney’s mental impressions and opinions, sometimes called “brain work.” Code Civ. Proc. § 2018.030(a). The remainder of an attorney’s work product enjoys only a qualified privilege. Code Civ. Proc. § 2018.030(b).

By codifying this privilege the legislature intended to ensure that attorneys enjoyed the privacy necessary to “prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases,” but also to ensure that attorneys do not “take undue influence of their adversary’s industry and efforts.” Code Civ. Proc. § 2018.020. What the legislature did not make clear through statutory authority, however, is who holds the work product privilege.

Who is the Holder of the Work Product Privilege?

Equally significant to discerning what content is protected is determining the holder of the attorney work product privilege. This is because the right to claim or waive a privilege rests necessarily with the “holder,” and only the holder can choose to take advantage of the work product doctrine’s protection[2] and preclude disclosure of certain information during discovery.  While the Evidence Code section enumerating the attorney client privilege explicitly states that the client holds the privilege,[3] the work product doctrine statute is silent as to the holder. Compare Evid. Code § 953 with Code Civ. Proc. § 2018.030.

Even though the attorney client privilege and the work product doctrine are similar in many ways, the holders of these privileges are distinct. Rather than the client, the attorney is the holder of work product protection. See State Comp. Ins. Fund v. Superior Court (2001) 91 Cal.App.4th 1080, 1091.

This rule is not as simple as it may seem. What if multiple attorneys at a firm participate in creating work product? Does each attorney have to agree on whether to assert the privilege, or waive it to allow discovery of the work product? What if an attorney leaves a firm but the client does not follow? Does the creating attorney still hold the privilege to protect work product related to that client’s case? The California Court of Appeals recently shed light on these questions.

Tucker Ellis LLP v. Superior Court

In June of 2017, the California Court of Appeal decided Tucker Ellis LLP v. Superior Court (2017) 12 Cal.App.5th 1233.  In that case, attorney Evan C. Nelson had previously worked for the law firm of Tucker Ellis LLP, specializing in asbestos defense. Tucker Ellis, supra, at 1237. During his time at Tucker Ellis, Nelson worked with a group of scientific consultants in researching smoking and/or radiation as causes of mesothelioma, rather than asbestos, and Nelson exchanged a series of emails with the consultants on this topic. Ibid. After Nelson left to work at a different firm, during discovery in a separate case Tucker Ellis was served with a subpoena that sought the emails between Nelson and the scientific consultants. Id. at 1237-1238. Tucker Ellis eventually produced the emails, and Nelson was then subpoenaed for a deposition. Id. at 1238. Nelson claimed he lost his job at his new firm as a result of the production of the emails, and subsequently filed suit against Tucker Ellis for various business torts as well as invasion of privacy and conversion. Ibid.

After discovery, Nelson filed a motion for summary adjudication wherein the trial court found that Tucker Ellis was required to obtain Nelson’s permission before disclosing the emails because they contained Nelson’s mental impressions and were covered by the work product doctrine. Tucker Ellis, supra, at 1239-1240. Tucker Ellis filed a petition for a writ of mandate, and the appellate court addressed the question of whether Nelson or Tucker Ellis was the holder of the work product privilege. Id. at 1240.

Who Holds the Privilege? The Lawyer or the Law Firm?

The answer is not obvious. The policy of the work product doctrine is to encourage attorneys to work up cases, examine both the good and the bad facts, analyze the effective in addition to the weak legal arguments, all without hesitation or fear of disclosure. Would this policy follow the individual lawyer that created the work product? The work product was in fact the result of that lawyer’s “brain work,” so it seems logical that the power to assert the doctrine would attach to the creator. But, what if that specific lawyer leaves his employment and the client remains with the firm? If a new lawyer takes over the case, does the original lawyer control the fate of the work product? Does it make sense that the lawyer no longer working on the case or with the client continues to control the document’s fate? The Tucker Ellis court did not think so.

The court in Tucker Ellis concluded that the “attorney” entitled to invoke the attorney work product privilege was the law firm. Tucker Ellis, supra, at 1245. The court considered Labor Code section 2860, which states that essentially everything that an employee acquires by virtue of his employment belongs to the employer, which, here, included the emails exchanged with the scientific consultants. Id. at 1241-1242. In other words, the court held that the lawyer, the actual individual whose mental process created the work product in question, did not hold the work product privilege, could not assert work product protection, and thus could not prevent disclosure of his own “brain work” product.

While this result may be distressing, giving the power of the privilege to the firm avoids an array of problems that could result if multiple attorneys participated in producing work product. “Securing permission from these attorneys to disclose their work product during discovery, and resolving conflicts among them when they do not agree about whether certain information constitutes work product or who was involved in creating it, will be a burdensome and complicated task . . ..” Tucker Ellis, supra, at 1247. The court acknowledged its holding was further buttressed by the potential “anomalous results that would potentially flow were [it] to adopt [the contrary] position.” Ibid.

Future Implications on Discovery Practice

While the Tucker Ellis holding could significantly impact discovery practice today, the court stressed multiple times throughout its opinion that the holding was very narrow. In addition to considering the policy of the attorney work product doctrine itself, the Court also relied on the fact that when Nelson started working at Tucker Ellis, he signed an agreement that stated that all records, files, emails, and firm technology systems were the property of the firm. Thus this case leaves us questioning how far the holding reaches, and whether the same conclusion would result on slightly different facts. For example, would the law firm hold the privilege if there was no employment agreement clarifying property ownership?

If this holding is in fact broadly applicable, it could result in a rule giving law firms the power to determine the fate of its attorneys’ work product during the discovery process, even the “absolute” work product containing the attorneys’ mental impressions. While it is unclear how widespread this holding applies, hopefully this case has opened the door for California courts to clarify under what circumstances the law firm rather than the attorney holds the work product privilege.

[1] Technically, the attorney work product doctrine is not a privilege enumerated in Evidence Code section 900 et. seq., and is therefore more appropriately referred to as the “attorney work product doctrine.” See Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2016) ¶ 8:2672 [citing Kizer v. Sulnick (1988) 202 Cal.App.3d 431, 436]. However, for ease of explanation, it will be referred to herein as the attorney work product privilege. 

[2] In certain circumstances the client can assert work product protection if the attorney is not present to claim it. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 63, [disapproved of by Coito v. Superior Court (2012) 54 Cal.4th 480]; Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135.

[3] Or the client’s guardian or conservator, the client’s personal representative, or the client’s successor. See Evid. Code § 953.