SEQ CHAPTER \h \r 1WORK PRODUCT DOCTRINE
By Thomas J. Curcio, Esq.
Dunn, Curcio & Keating, P.C.

A common discovery response is that the requested information is protected by the work product doctrine and therefore not subjected to discovery. Each such claim must be determined on a case-by-case basis as the circumstances surrounding when and why the requested material was prepared is key in determining whether it is work product and protected from disclosure.

The leading opinion on the work product doctrine is Hickman v. Taylor, 329 U.S. 495, 91 L. Ed. 451, 67 S. Ct. 385 (1947), which adopted the term “work product” previously coined by the Court of Appeals in deciding the case. The work product doctrine has been recognized by the Virginia Supreme Court. See Rakes v. Fulcher, 210 Va. 542, 546, 172 S.E.2d 751 (1970). It is codified in both the state and federal discovery rules. See Virginia Supreme Court Rule 4:1(b)(3) and F.R.C.P. 26(b)(3). Note that Virginia adopted the federal rules on discovery “verbatim so far as is consistent with Virginia practice...To enable Virginia lawyers and circuit court judges to use federal precedents to guide Virginia practice in the field of discovery.” W.H. Bryson, Handbook on Virginia Civil Procedure 319 (2nd ed. 1989) cited in Smith v. AMTRAK, 22 Va. Cir. 348, 350 (Richmond, 1991).

The primary policy underlying the work product doctrine is the protection of the privacy of an attorney’s mental processes. United States v. Nobles, 422 U.S. 225, 238, 45 L.Ed.2d 141, 95 S.Ct. 2160 (1975). Note that the case law and both rule 4:1 (b)(3) rule 26 (b)(3) extend the doctrine to the work product of others prepared in anticipation of litigation. This would include work performed by investigators and claims adjusters. The doctrine is intended to prevent a party from taking advantage of the work performed on behalf of another party and recognizes that an attorneys thoughts and mental processes must be protected in an adversary system. “Discovery procedures were not intended to open an attorney's files to opposing counsel; nor were they intended to afford an attorney the luxury of having opposing counsel investigate his case for him. ” Rakes, 210 Va. 542, 547.

Court Rules

Virginia Supreme Court Rule 4:1(b)(3) and Federal Rule of Civil Procedure 26(b)(3) are  identical in all material ways. Rules 4:1(b)(3) provides, in pertinent part, as follows:

(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this Rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this Rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In 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 an attorney or other representative of a party concerning the litigation.

What Constitutes “Work-Product”

While a precise definition of work product does not exist, the test generally developed by the courts to determine whether documents constitute work-product is whether “...the primary purpose for generating the document was the prospect of litigation.” McCullough v. Standard Pressing Machines Company, 39 Va. Cir. 191, 193(Fairfax, 1996) citing United States v. Davis, 636 F.2d 1028,1040 (5th Cir. 1981), cert. den., 454 U.S. 862, 70 L.Ed.2d 162, 102 S.Ct. 320 (1981); United States v. Gulf Oil Corp., 760 F.2d 292,296 (Temp.Emer. Ct.App. 1985), Binks Mfg Co. V. Nat. Presto Industries, Inc., 709 F.2d 1109 (7th Cir. 1983). See also Smith v. AMTRAK, 22 Va. Cir. 348 (1991).

Burden of Proof

The burden is on the party claiming work-product to prove it, i.e. that the material were prepared in anticipation of litigation. McCullough v. Standard Pressing Machines Company, 39 Va. Cir. 191, 192, (Fairfax, 1996). If the court determines that the materials are work product, the burden then shifts to the party seeking discovery to prove a “...substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by further means.” Rule 4:1(b)(3). “Absent a showing of substantial need and undue hardship, the party seeking discovery may not obtain what the court finds to have been prepared in anticipation of litigation or ‘work- product’”. Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loundon, 1995). In determining undue burden, the court considers whether both sides have equal opportunity to investigate and whether all witnesses are known and available to both sides. Generally, undue burden will not be found in such circumstances.

Having determined that the reports were prepared in anticipation of litigation and thus protected as work product, the next inquiry is whether Smith has met his burden of showing that he has substantial need of the material and is unable, without undue hardship, to get its substantial equivalent. He has been given the names of all persons having knowledge of the injury. His own investigation should produce substantially the same information [**11] he seeks from the NRPC without undue hardship. What he seeks is the defense case without the effort of his own investigation. He has made no showing of circumstances which would meet those requirements for disclosure; therefore, his motion to compel the production of the investigative reports is overruled. Smith v.AMTRAK, 22 Va. Cir. 348, 353 (Richmond, 1991).

Discovery of Witness Statements

Over the last several years, there has been much litigation concerning the discovery of witness statements in personal injury cases. The courts have analyzed whether the statements are work-product, i.e. prepared in anticipation of litigation. In doing so, the courts have considered the purpose for taking the statement, whether statements are routinely taken, the time the statement was taken, and whether counsel was involved on behalf of the injured party at the time the statement was taken.

Courts holding that routine investigatory reports without more, are discoverable are the following: Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield 1999), (holding that statements taken by defendant of it’s employees before suit filed and defense counsel retained were not taken in anticipation of litigation); Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham 1998) (holding statement taken by liability adjuster of its insured before carrier had retained counsel was discoverable); Estabrook V. Conley, 42 Va. Cir. 512 (Rockingham 1997) (statement by an insured to claims adjuster of liability carrier before defense counsel is hired and before injured person suggested making a claim are discoverable); Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466 (Albermarle 1996) (materials generated or gathered by the liability carrier before receipt of letter from injured person’s lawyer advising of representation and claim were not prepared in anticipation of litigation and are discoverable); Overton v. Dise, 35 Va. Cir. 177 (Fairfax 1994) (recorded statement taken by liability insurer of its insured a day after the collision was taken in ordinary course of business and is discoverable); S. W. Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235 (Albermarle 1993) (materials generated by an agent of an insurance company during his routine investigation of a fire loss claim are made in the ordinary course of business and are discoverable); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367 (Amherst 1992) (statements taken by safety employee of two fellow employees two days after plaintiff fell and was injured and before notice of claim were taken in ordinary course of business and are discoverable).

Cases holding that the materials are work-product and not discoverable are the following: Larson v. McGuire, 42 Va. Cir. 40 (Loudoun 1997) (where plaintiff was severely injured and third party liability implicated, witness statements taken by liability adjuster a few days after the collision were taken in anticipation of litigation and not subject to discovery without showing of substantial need and undue hardship to obtain substantially equivalent materials); McCullough Standard Pressing Machines Co., 39 Va. Cir. 191 (Fairfax 1996) (holding that where multivehicle collision occurred resulting in serious injuries and implicated third party liability coverage, adjuster’s report was prepared in anticipation of litigation and is protected from discovery); Ring v. Mikris, Inc., 40 Va. Cir. 528 (Newport News 1996) (the determination of whether requested materials were prepared in anticipation of litigation involves determining whether the document was prepared because of the prospect of litigation, the preparer faces an actual or potential claim, and the preparer could reasonably foresee that the actual or potential claim would result in litigation. Courts listed 8 items to consider in making this determination, including the seriousness of the injuries and how apparent is the negligence of the wrongdoer); Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995) (holding statements taken by a liability carrier four days after a collision involving a motor vehicle and motorcycle were prepared in anticipation of litigation and protected as work product); Green V. Oakwood Mobile Homes, Inc., 37 Va. Cir. 137 (Essex 1995) (statement of defendant employee to employer’s liability adjuster is work product and not discoverable); and Economos v. K-Mart Corp., 33 Va. Cir. 55 (Charlottesville 1993) (incident report prepared by store manager on day injured party fell was prepared in accordance with standard procedure to conduct investigation in event of or in anticipation of litigation was protected as work product as was manual setting forth how to conduct such investigations).

Conclusion

As is evident from a review of the above cases, there is no bright line test for determining whether a statement or investigatory materials are prepared in anticipation of litigation. Each case must be analyzed on its own facts. Additionally, remember that the privilege for work product is a qualified privilege and the materials can be discovered if the moving party has a substantial need of the materials and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

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