What Does the “Work-Product Privilege” Protect?

In all New Jersey civil litigation, a party is normally entitled to obtain discovery of non-privileged documents held by the other party. However, the attorney-client privilege protects any communications between a party and their own lawyer from discovery. There is also a related, yet distinct privilege for “work product” created in anticipation of litigation.

New Jersey Court Rule 4:10-2(c) establishes the work-product privilege. It states that subject to certain exceptions, a party may not obtain discovery of “documents, electronically stored information, and tangible things” held by the other party if the material was “prepared in anticipation of litigation or trial by or for another party” or their agent.

In plain English, the work-product doctrine extends to materials prepared by a third party at the request of a party or their lawyer in preparation for a civil lawsuit. The party requesting discovery may still attempt to pierce the work-product privilege by demonstrating to the court that there is a “substantial need” for the document or information, and there is no way to obtain a “substantial equivalent” without incurring an “undue hardship.”

You may wonder how the work-product doctrine differs from the attorney-client privilege. The former is actually much broader in scope, as it covers not just communications between the client and their attorney, but also the “mental impressions, conclusions, opinions, or legal theories” of the attorney or another representative of the party.

Expert Report Excluded from Discovery

To illustrate how New Jersey courts apply the work-product doctrine, consider this recent unpublished decision by the Appellate Division of the Superior Court. The Record newspaper in Bergen County sued the City of Clifton seeking disclosure of records related to proposed changes in the City's payroll system. In short, the Record ran a series of articles alleging the existing payroll system underpaid employees. The City then hired an outside accounting firm to perform an outside audit of the payroll system and make recommendations for changes. After the auditor issued its final report, the City ended up issuing “special payroll checks” to more than 400 underpaid employees.

The Record wanted a copy of the auditor's report. When the City refused to grant access, the newspaper filed a civil lawsuit. Both a trial court and the Appellate Division sided with the city. Of note here, the Appellate Division said the city was entitled to withhold the report under the work-product privilege. The appeals court noted the report was prepared by a consultant hired by the City and contained information that “would be highly relevant to the issues raised in the grievances and arbitrations filed by the affected employees.” And generally speaking, public policy shields “consultations with expert witnesses in connection with pending or threatened litigation.”

It is important to emphasize this opinion was unpublished. The Appellate Division may soon take up the work-product privilege again in a published decision because there are still some inconsistencies among trial judges in the state when it comes to applying the rule. If you have questions or concerns about how the work-product privilege affects your legal practice, contact our General Liability attorneys or call 732-545-4717 today.