Learn what qualifies as attorney work product during the discovery phase of an employee lawsuit and how this privileged information is exempt from legal discovery.
Table of Contents
Question
An employer is being sued by a former employee, and the case is entering the discovery phase. Which information would be considered attorney work product and therefore exempt from discovery?
Answer
HR director’s e-mail to the employer’s attorney explaining the complaint. Attorney work product refers to information shared by an attorney and client in preparation for litigation. The e-mail to the attorney would be considered work product.
Explanation
When an employer is being sued by a former employee and the case enters the discovery phase, certain information may be considered attorney work product and thus exempt from discovery. Attorney work product refers to materials prepared by or for an attorney in preparation for litigation. The purpose is to protect the confidentiality of the attorney’s thoughts, strategies, and communications with their client regarding the case.
In this scenario, an email from the HR director to the employer’s attorney explaining the employee’s complaint would be considered attorney work product. This email likely contains information shared between attorney and client as they discuss the case and start building a defense strategy. The confidential nature of these communications and work products helps ensure a fair legal process where the client can be totally open with their counsel without fear that the other side will gain access to their preparations.
Other examples of attorney work product could include the attorney’s notes from meetings with the client, memos analyzing the strengths and weaknesses of the case, draft arguments, and collections of evidence or research done specifically for this litigation. All such materials are generally exempt from discovery and do not have to be turned over to the employee or their counsel.
However, underlying facts, information, and evidence are not protected, even if also contained in work product documents. So while the HR director’s email itself is likely work product, if it references documents or events, those underlying items could still be subject to discovery through other means like depositions or subpoenas. The key is that the attorney’s thoughts, impressions and strategies remain confidential.
In summary, an email from the HR director to the company attorney explaining an employee lawsuit would be considered attorney work product and exempt from discovery during litigation, as it constitutes confidential communication between attorney and client made in preparation for the case. This facilitates an effective legal defense and fair process.
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