When a client representation ends, the client may ask for a copy of “the file” maintained by the firm. What is kept as part of the file may depend on the firm’s policies and procedures.

Typically, the file is expected to contain copies of correspondence or pleadings. It can become complicated, though, when deciding what to do with attorney-generated documents like memos, internal correspondence or notes. Is all of that part of the client file?

When the request for the file comes from a client or a client’s new counsel, they may be expecting a set of pleadings, briefs and correspondence—but sometimes the expectation is that the file will also contain work product materials (like memos and notes).

This situation can also arise in third-party litigation, where law firms not only have to consider whether materials are privileged or confidential, but also whether they constitute work product.

When evaluating requests for the production of work-product materials (whether by clients or third parties), it is helpful to understand the basic parameters of the work product doctrine. Since the doctrine’s inception in Hickman v. Taylor, the work product doctrine has developed at both the federal and state levels.

Provided below are some considerations when lawyers receive a request for the “client file.”

Categorizing Work Product

Generally, there are two distinct categories of attorney work product: (1) “general work product” (sometimes referred to as “fact work product” or “ordinary work product”) and (2) “opinion work product.”

General work product typically consists of documents and things that are prepared in anticipation of litigation or for trial. Opinion work product usually includes only those litigation or trial preparation materials that contain the mental impressions, opinions, conclusions or legal theories of the party’s lawyers or other representative regarding the litigation.

This distinction is important because of the different status afforded to each. General work product materials are typically subject only to a qualified privilege, which means that a court may order them to be disclosed if the requesting party satisfies certain requirements, including that the requesting party has a “substantial need” of the materials and is unable to obtain the substantial equivalent of the materials by other means.

Conversely, courts have generally found that opinion work product is entitled to an absolute privilege and can be protected from disclosure under certain circumstances, even where the requesting party has “substantial need” of those materials.

So what happens when the client asks for work product materials created by their lawyers? A majority of jurisdictions have found that a document created by a lawyer belongs to the client who retained that lawyer. Accordingly, clients may argue that they are entitled to any document that the lawyer created during the representation. Notably, case law has recognized specific exceptions to this rule, including if the lawyer can demonstrate good cause to protect the documents from disclosure, such that disclosure would violate the lawyer’s duty to a third party.

The document may also be protected where it assesses that particular client (so as to encourage the lawyer’s ability to privately document her own thoughts and opinions), where the relationship between client and lawyer becomes adversarial or where the document contains a tentative preliminary impression of the legal or factual issues presented in the representation (recorded for purpose of giving internal direction for the performance of legal services).

Identifying the Creator

Another critical factor for determining whether materials are work product (and to determine what type of work product they are) is who created the materials.

Depending on the legal representation, many different individuals could have played a role in creating work product material. Although most often work product materials may have been created by the client or the lawyer, there may be other individuals associated with those parties who generate work product entitled to some level of protection.

For instance, in many states, materials created by or for a party’s consultant, surety, indemnitor, insurer and agent may constitute work product. In addition, the lawyer’s employees who participate in the representation, such as legal assistants and paralegals, may also generate work product.

What about materials created by or for expert witnesses working on a client’s behalf? That can be complicated. Under the Federal Rules of Civil Procedure, for example, the answer lies in whether the expert will testify at trial or whether the expert is retained as a consultant.

If it is the former, the work-product doctrine may not protect the facts known or opinions held by those experts. After all, the purpose of retaining a testifying expert is to use their opinions, and therefore the facts used to form those opinions, at trial. However, as to non-testifying experts, their identity and the facts and opinions they hold are generally protected and need not be disclosed.

Avoiding Waiver

The work product doctrine usually protects the interests of both client and lawyer. But once protected documents are produced, it may be difficult to “put the genie back in the bottle.” Some litigants will reach an agreement at the outset of the litigation regarding how to handle inadvertent disclosures of protected materials.

In addition, courts will look at whether the waiver was intentional or inadvertent, or whether the disclosure was made to an adversary, in determining whether a right to protect information from disclosure has been waived.

Being mindful of these parameters can help reduce headaches in preparing or returning the “client file.”