Multistate Professional Responsibility Examination (MPRE)Client ConfidentialityMedium
An attorney is representing a client in a complex environmental lawsuit. The attorney hires an independent environmental consultant to analyze technical data and provide expert opinions to assist the attorney in understanding the scientific issues and preparing for litigation. The consultant's report contains detailed technical analysis and preliminary conclusions. The opposing party subsequently issues a subpoena demanding the production of this consultant's report. Is the consultant's report protected by the work product doctrine?
- ANo, because the report contains technical data, not legal analysis.
- BYes, because it was prepared in anticipation of litigation by an agent of the attorney.
- CNo, because the consultant is not an employee of the law firm.
- DYes, but only if the consultant's preliminary conclusions are unfavorable to the client's case.
Show answer & explanationAnswer & explanation
Correct answer: B. Yes, because it was prepared in anticipation of litigation by an agent of the attorney.
The work product doctrine protects materials prepared in anticipation of litigation or for trial by or for another party or its representative (including the attorney's agents, such as consultants). The consultant's report, created to assist the attorney in litigation preparation, falls squarely within this protection.
Why the other options are wrong
- A. Work product protection applies to various materials, including technical analyses, as long as they are prepared in anticipation of litigation, not just legal analysis.
- C. The work product doctrine extends to agents of the attorney, regardless of employment status, as long as the work is done in anticipation of litigation.
- D. The favorability of the conclusions is irrelevant to whether the document qualifies as work product; the key is the 'in anticipation of litigation' criterion.
Work Product Doctrine Scope
The work product doctrine protects tangible materials prepared in anticipation of litigation or for trial by or for a party or its representative.
- Protects materials prepared 'in anticipation of litigation'.
- Covers attorneys, consultants, investigators, etc.
- Distinguishes between 'ordinary' and 'opinion' work product, with higher protection for the latter.
Memory trick: Prep for battle, keep your notes safe.