Work product and disclosure requirements
The excellent Daubert on the Web site informs us of a decision of a Pennsylvania Superior Court holding that an attorney who consults with medical experts in a will contest case may be required to submit to deposition regarding his communications with the experts. The court held that this line of inquiry was not prohibited by the attorney-client privilege, but did recognize that work product limitations would continue to apply.
A little context is needed for proper appreciation of the issues. The attorney had been appointed by the court to represent the incapacitated person whose capacity during her lifetime was at issue in a will contest, and the attorney thus arguably had more of a responsiblity to the court than would a privately-retained attorney.
The court ruled on the attorney's objections as follows:
1. The information communicated by the medical witnesses was not privileged.
2. Although the work product rule would be recognized, it would not cover the information communicated to the lawyer by the witness. Only the lawyer's mental impressions would be protected.
The court analyzed the latter issue as follows:
The underlying purpose of the work product doctrine is to shield "the mental processes of an attorney, providing a privileged area within which he can analyze and prepare his client’s case." Lepley v. Lycoming County Court of Common Pleas, 481 Pa. 565, 393 A.2d 306, 310 (1978). The doctrine "promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients." Commonwealth v. Noll, 662 A.2d 1123, 1126 (Pa. Super. 1995).
None of the items listed in the trial court’s order appear to involve attorney Cosgrove’s own "conclusions, opinions, memoranda, notes or summaries, legal research or legal theories" with the exception, perhaps, of that portion of the order calling for disclosure of the "substance of all discussions/meetings."
In re Estate of Wood (PDF)
I believe that the court misapprehended the purpose of the work product rule and jumped too quickly to the need to protect the attorney's conclusions, opinions, or theories. That protection is not, as the court stated, the "underlying purpose" of the rule. Instead, that protection is a limitation on the right of an adversary to obtain information once the required showing of need is made.
The work product doctrine is a quasi-privilege, one which is qualified rather than absolute. It is based upon the perception that it would be manifestly unfair to require an attorney who has developed factual information, and has been paid by his client to do so, to be compelled to turn that information over to the other side unless (1) that information is to be used at trial, in which case it is subject to the court's order regarding the timing of disclosures, or (2) there is an identifiable hardship or necessity which justifies the intrusion into the results of the lawyer's effort on behalf of his client. When and only when that showing is made, the court will turn to the need to prevent the disclosures from including the attorney's conclusions, opinions, theories, and strategies.
Examples of the showing that the rule envisions:
- If an attorney interviews a witness, there is generally no need for the results of that interview to be disclosed, since the other side can also interview the witness and presumably obtain the same information.
- If the witness who has been interviewed by one attorney is suddenly absent and cannot be found, by contrast, then the need probably can be shown, since there is no longer an equal opportunity for his opponent to obtain that information.
There are obviously many gray areas in between these two extremes. What of the attorney who waits for 18 months before even trying to contact the witness? Should he profit from his laziness and reap the benefit of his adversary's diligence?
And what of other information? The knowledge or recollection of a witness is only one consideration. If the attorney develops a list of witnesses who have knowledge about the case or documents that pertain to it from his interviews and his investigation, should he be compelled to share those lists even if he is not required to turn over the information he has learned from interviews? Does a marked disparity in litigating power (consider a major law firm vs. a solo practitioner) satisfy the need requirement?
7:49:06 AM 
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