“The labour product doctrine” means non-privileged documents may be protected during discovery or in court by applying the labour product doctrine if the documents contain mental impressions of counsel and the party requesting the documents cannot demonstrate a material need or inability to obtain equivalent information without undue hardship. Despite its inclusiveness, the labour product doctrine is less powerful than solicitor-client privilege and can therefore be overcome by a demonstration of necessity. An example of a possible exception would be a witness who is unavailable due to death or who lives in a distant/hostile nation. Thus, courts distinguish between “fact” and “opinion” Work product.6 The “Done” work product is the factual information that relates to the dispute and that is prepared or collected in connection with it.7 The “Opinion” work product consists of the lawyer`s mental impressions, conclusions, opinions, or theories in relation to the dispute.8 Fla. R. Civ. P. 1.280(b)(3) also recognizes this distinction because it provides that a party may obtain the discovery of documents and tangible things created by another party in anticipation of litigation (product factwork) if it is shown that it is necessary and unable to obtain the essential equivalent of those documents without unreasonable difficulty. By establishing distinct differences between the factwork product and the opinion work product, privilege as it exists today encourages the efforts of lawyers and others to protect and promote the interests of their clients in litigation by protecting the privacy rights of the individual.
At the same time, it promotes the cause of justice in any event by allowing litigants, in certain circumstances, to obtain a factual result that is relevant and necessary to make a fair and correct judgment on the merits of each case. The labor product doctrine states that, in general, a counterparty cannot discover or compel the disclosure of written or oral documents prepared by or for a lawyer in the course of legal representation, particularly to prepare for litigation. However, under Rule 26(b)(3) of the Federal Rules of Civil Procedure, an opposing party may determine or cause to be enforced the disclosure of the result of the work if it demonstrates “significant need” and “undue hardship”. Hickman`s court found that a lawyer was forced to “testify about what he remembered or thought was right to write it down. could not be considered as evidence; And using it for impeachment or confirmation purposes would make the lawyer much less of a court official and much more of an ordinary witness. The level of the profession would suffer. Partial disclosure of information or documents does not necessarily mean that privilege is waived in respect of all information.74 For example, disclosure of an expert`s written opinion does not mean that the work product privilege has been waived in respect of known facts and expert opinions that were not previously disclosed in the opinion.75 In the important case of Hickman v. Taylor, 329 USA 495 (1946), the U.S. Supreme Court ruled on whether notes taken by a lawyer questioning witnesses to the sinking of a boat could be found. Apparently, the lawyer`s notes were intensely sought by the opposition as evidence of their case. The lawyer`s notes were filled with his own impressions and thoughts about the testimony. The collection of such documents by the opposition would have served the dual purpose of obtaining information disclosed by witnesses and of better understanding counsel`s thoughts on an integral aspect of his case.
The court ruled that these notes, mainly because they contained thoughts and impressions of a lawyer, are nowhere to be found: “Historically, a lawyer is an official of the court and is obliged to work for the promotion of justice while faithfully protecting the legitimate interests of his clients. However, in the performance of his or her various duties, it is imperative that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their lawyers. This is the historic and necessary way in which lawyers act within our legal system to promote justice and protect the interests of their clients. Because work product privilege protects the interests of both the lawyer and the client, either can claim it.76 If the client waives the privilege over the actual work product, the lawyer may not have the right to assert the privilege and prevent disclosure.77 However, the lawyer may waive the client`s privilege with respect to the product of opinion work because of the best interests. of Lawyers protecting the right to privacy.78 The work product rule is an exception to the concept of information sharing. This rule is based on the relationship between the lawyer and the client, which implies maintaining the confidentiality of the information provided by the client. The general rule is that legal research, records, correspondence, reports or memoranda are a product of the lawyer`s work as long as they contain the opinions, theories, strategies, mental impressions or conclusions of the client, lawyer or people involved in the case with the lawyer, such as . B a jury consultant. . .