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Work Product, Waiver

Confidential communications between attorney and client are privileged and generally exempt from discovery or disclosure. Attorney work product, both tangible and intangible, is also protected — and is often equally as important. Attorney work product applies to two different types of information: (1) opinion work product and (2) trial preparation materials.

Opinion work product relates to the client’s litigation and includes mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party. Opinion work product is absolutely immune from discovery (absent a waiver, which is discussed below). Trial preparation materials are only immune from discovery if certain circumstances exist. To be protected from discovery, trial preparation materials must be (a) documents or tangible things, (b) prepared by or for a party or that party’s representative, (3) in anticipation of litigation or for trial. If these elements are present, trial preparation materials may only be discovered if the party seeking the document shows a substantial need for the material and in inability to obtain the information elsewhere without undue hardship. 

 

The work product privilege may also be waived, but Courts construe waivers such as this strictly. “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.” State v. Driskill, 459 S.W.3d 412, 426 (Mo. 2015). Most litigation and disputes about work product comes in the pre-trial discovery phase. Contact with questions.