Work Product Privilege


 * This article is part of a series on Exemptions
 * This article is part of a series on Exemption 5

Introduction
The work product privilege is one of the privileges incorporated into Exemption 5. It generally protects material prepared by an attorney for the purposes of litigation.

Applicability
The work product privilege protects the “‘mental processes of [an] attorney.’” These materials must have been prepared by attorneys “in anticipation of litigation.” As this privilege applies “without regard to the status of the litigation for which it was prepared,” the protection for attorney work product continues even after litigation ends.

To qualify under the privilege, records must be prepared for litigation. For example, a court held that an agency failed to show documents related to its decision to designate certain salmon as endangered under the Endangered Species Act were prepared “in anticipation of litigation” where the agency did not establish any correlation between the withheld documents and the litigation for which each document was created. While the agency listed five lawsuits that it claimed were related to the record, the court found this explanation to be inadequate, as the agency “offer[ed] no information that the documents requested were prepared for any of these lawsuits.” The court emphasized that the agency had the burden to demonstrate that the documents at issue were actually “created because of” those lawsuits, rather than merely “prepared in the ordinary course of business or. . . [documents that] would have been created in essentially similar form irrespective of the litigation.”

Unlike the deliberative process privilege, courts have generally declined to distinguish between facts and opinions contained in material protected by the work product privilege, holding that both are covered. Courts have held that this privilege “should be interpreted broadly and held largely inviolate,” citing the need to enable attorneys to freely draft documents in preparing their clients’ cases without concern that such material will later be released.

Unprofessional Behavior
A requester may be able to overcome the work product privilege in some cases where the attorney engaged in “unprofessional behavior,” as an attorney cannot use the privilege to hide such conduct.

The U.S. Court of Appeals for the District of Columbia Circuit examined such a claim where an Internal Revenue Service attorney excluded the opposing party and his counsel from a meeting with a judge. The requester sought the IRS attorney’s memorandum detailing the meeting, alleging that the exclusion of opposing counsel from the meeting violated court rules and the American Bar Association’s ethics standards, and argued that since the memorandum was “the fruit of impermissible legal conduct,” the work product privilege could not apply. Agreeing that “at least in some circumstances, a lawyer’s unprofessional behavior may vitiate the work product privilege,” the court remanded the case to the district court to make a determination of “whether such circumstances exist in this case, and. . . whether the actions of the IRS attorney in fact violated professional standards.”

However, requesters should note that even if they prevail on such a claim of attorney misconduct, they may not necessarily succeed in obtaining access to the record, as the privilege is designed to protect clients’ interests. As the U.S. Court of Appeals for the District of Columbia Circuit instructed, courts must “look to all the circumstances of the case, including the availability of alternate disciplinary procedures, to decide whether the policy favoring disclosure outweighs the client’s legitimate interest in secrecy.”