The Attorney Work Product Doctrine in New York: A Humble Proposal
The way that the attorney work product doctrine is written into a New York statute is infelicitous. It sets up a trap, and if we fall into it, then we wind up saying that the attorney work product doctrine is different in New York than anywhere else.
We can pull ourselves out of the trap by insisting the New York statute can’t possibly mean what it looks like it’s saying. But I think there is a way to look at the statute so that you can avoid the trap without having to ignore what the statute plainly says. There is a way to read New York’s enactment of the attorney work product doctrine so that even on its surface it’s saying what it should say.
I’ve never seen this way of reading the statute mentioned anywhere. I offer it here, for the benefit of lawyers everywhere.
The attorney work product doctrine in federal court
An earlier post in this blog discussed the attorney-client privilege. The attorney work product doctrine is different. It was hatched by the U.S. Supreme Court in 1947. After that, it was recognized to be so important that the federal courts (technically, Congress) wrote it into the federal courts’ rules of civil procedure, and pretty much every state copied the federal courts, each state writing the federal rule into its own state law.
Here is what the federal rule says (with an important bit flagged in red):
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But … those materials may be discovered if:
(i) they are otherwise discoverable [under the usual rule]; and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.[1]
You can view this as creating two tiers of protection.
TIER ONE: We are at this tier if the material does not reveal “the mental impressions, conclusions, opinions, or theories of a party’s attorney or other representative concerning the litigation.” At this tier, the material is protected with an exception: If the person asking for it really needs it to prepare her case, then you must turn it over.
TIER TWO: We are at this tier when the material would reveal those “mental impressions, conclusions, opinions, or theories.” Now the material is protected without exception.
Material at tier one is often said to enjoy only a “qualified” protection, because at tier one you have that exception. At tier two, the protection is unqualified.
Some important ways in which the attorney work product doctrine is different from the attorney-client privilege are these:
CONFIDENTIALITY. The attorney-client privilege is easily destroyed by sharing a document with an outsider. If the communication between client and lawyer has not been kept strictly confidential, the privilege is gone. In contrast, material that is protected by the work product doctrine can be shown to some outsiders without destroying the protection. When you share it with the outsider, you just have to do it in a way that shows you still want the material kept out of the hands of your adversary.[2]
BLANKET WAIVER. Generally, if you show your adversary a single document that had been protected by the attorney-client privilege, you destroy the privilege for not just that one document but for all your previously privileged documents that concern the same subject. That is to say, waiver of the attorney-client privilege is a blanket waiver.[3] In contrast, waiver of the attorney work product doctrine for one document often does not result in a blanket waiver. Often you can show your adversary one piece of “attorney work product” without waiving the protection for your other work product on the same subject.[4]
ADVERSARIAL PROCEEDING. The attorney work product doctrine applies only to materials that you created with an eye towards getting a judge or a jury (or, presumably, an arbitrator) to say that you win and someone else loses. That’s the part that I flagged in red. In contrast, the attorney-client privilege applies to communications you had with your lawyer even when no one anticipated any sort of litigation.
Lots of documents will be protected by both the attorney-client privilege and the attorney work product doctrine. For example, when you tell your lawyer your version of the car crash over which you’ve been sued, your lawyer’s notes of that discussion are protected by both the attorney-client privilege and the attorney work product doctrine. So, there is overlap. But here are examples of documents that are protected by just one or the other, not both:
EXAMPLE A. Your lawyer interviews your neighbor to find out what she remembers from when she saw the car crash over which you’ve been sued. Your lawyer’s notes of this interview, maybe even including a diagram that your neighbor drew for her, are protected by the attorney work product doctrine. They are not protected by the attorney-client privilege, because there is nothing here that was said by a client to a lawyer.
EXAMPLE B. On your own, you interview your neighbor to find out what she remembers from when she saw the car crash over which you’ve been sued. Your notes of this interview, maybe even including a diagram that your neighbor drew for you, are protected by the attorney work product doctrine, even though, oddly enough, there was no attorney in that conversation. The notes are not protected by the attorney-client privilege – because there was no lawyer (attorney) in that conversation.
EXAMPLE C. You designed an online software application and are selling subscriptions to use it. You e-mail your lawyer a description of the software and a question about how you could protect yourself from competitors. So long as you kept it confidential, your e-mail to your lawyer, as well as your lawyer’s response to you (discussing ideas for maybe patenting the algorithm, maybe registering the copyright for the software’s visuals and source code, and maybe digging a moat around your office to ensure that you can invoke trade secret laws) are protected by the attorney-client privilege. The e-mails are not protected by the attorney work product doctrine, because you can’t say there’s anyone with whom you were anticipating litigation. You are not fighting with anyone.
The attorney work product doctrine in New York
I’ve already mentioned that in most states the language from the federal rules that I quoted above has been copied nearly word for word and added to the state courts’ rules or to a state statute. How about in New York? The statute in which we find procedural rules for civil cases in New York has this language, which tracks the federal rule pretty closely:
[M]aterials … prepared in anticipation of litigation or for trial by or for another party, or by or for that other party’s representative (including an attorney, consultant, surety, indemnitor, insurer or agent), may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation.[5]
You can confirm for yourself that this just says the same thing that the federal rule says. Both tier one and tier two are provided for, just like in the federal rule.
Now, here’s where the trap in New York law lies. What I just quoted is from subsection (d)(2) of a New York statute. The same statute also has a subsection (c), and this is what throws people off. Here is what the whole thing looks like:
CPLR 3101. SCOPE OF DISCLOSURE
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action …
(b) Privileged matter. Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.
(c) Attorney’s work product. The work product of an attorney shall not be obtainable.
(d) Trial preparation.
1. Experts. …
2. Materials. [Here is the language that I already quoted.]
(e) Party’s statement. …
(f) Contents of insurance agreement. …
(g) Accident reports. …
(h) Amendment or supplementation of responses. …
So, we looked at (d)(2), which says the same thing as what we saw in the federal rule. And now we notice that there’s also this subsection (c), which is very short – just a terse announcement that “[t]he work product of an attorney shall not be obtainable.” This is puzzling. What’s that subsection doing there? Is it adding something more to what we already found in (d)(2)?
These natural questions raised by subsection (c) are the trap that people fall into. This is when you hear observations such as that “CPLR 3101(c) confers an unqualified, absolute privilege of immunity” in contrast to subsection (d)(2)’s usual tier-one protection that we already noted is qualified.[6] Well that seems strange, because subsection (d)(2) has both the qualified protection of tier one and the unqualified protection of tier two. So we still don’t know what subsection (c) is for.
And note this big difference between subsection (c) and subsection (d)(2): In subsection (d)(2), just like in the federal rule and in every other state that I’ve ever checked, we are talking only about “work product” that was prepared for litigation; but subsection (c) doesn’t have any words limiting it to litigation. Of our three examples above – A, B, and C – it looks like the e-mails in Example C will be protected by subsection (c) though not by subsection (d)(2). New York suddenly looks like a unique state, and not necessarily in a good way.
Turning to the principal commentaries on the New York statute, we find handwringing and griping. According to the standard treatise, “[t]he surgery that separated” subsection (c) from subsection (d)(2) “was a botched job; all of the vital organs went to (d).”[7] And the often-cited McKinney’s Practice Commentary says: “The courts are apparently well aware of the ludicrous potential that lurks in a literal application of CPLR 3101(c).”[8] The one thing that these commentaries are happy about is that they don’t see many cases in which subsection (c) was the basis for a decision. You can hear a sigh of relief when reading in the standard treatise that subsection (d) “is as active in New York practice as (c) is quiescent.”[9] And the McKinney’s commentary says:
Perhaps the healthiest omen of all is this: despite the fact that the cases on the exclusionary provisions of CPLR 3101 are massive in number, there are precious few that have assigned a disputed item to subdivision (c). Additionally, some that put a case into the (c) category were really doing no more than recognizing privileged communications that subdivision (b) [i.e., the attorney-client privilege] protects.[10]
And when courts do turn their attention to subsection (c) with the idea that it might have something of its own to say, they strive to read subsection (c) very narrowly. For example, they say that subsection (c) applies solely to matter that is “peculiar to the lawyer’s trade and talent,” not to anything that “a lay person could have done.”[11]
The older version of New York’s statute
How did New York’s statute get to be such a mess? It didn’t happen all at once. The statute used to be different. Once upon a time, subsection (d) was much shorter. Here is how it used to read:
(d) Material prepared for litigation. The following shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship:
1. any opinion of an expert prepared for litigation, and
2. any writing or anything created by or for a party or his agent in preparation for litigation.[12]
In this older version of the statute, unlike in today’s version, subsection (d) was limited to the federal rule’s tier one. It’s natural to suppose, then, that the drafters of this older version decided to split the federal rule’s two tiers into two subsections of CPLR 3101. Tier one – the qualified protection – went to subsection (d), while tier two – the tier where the lawyer’s mental impressions are protected – went to subsection (c).
Later, subsection (d) got amended: The federal rule’s tier two got added to subsection (d). But subsection (c) was left untouched. That is how we got today’s puzzle of a statute.
Even if the older version of the statute is less puzzling than today’s version, that doesn’t mean that the older version was well drafted. Looking at the older version of the statute, we still have the puzzling omission from subsection (c) of any words explicitly limiting it to work product that was prepared for litigation. So even before the amendment of subsection (d), New York was looking unique, thanks to subsection (c)’s omission of a reference to litigation.
Regardless, after the amendment to subsection (d), the statute became a mess. With tier two getting added to subsection (d), why was subsection (c) left alone? Now subsection (c) seems to overlap with a part of subsection (d) except that it’s still got the vexing omission of any reference to litigation.
Is subsection (c) limited to work product prepared for litigation, like the federal tier two?
Sometimes we find New York cases in which the court’s opinion includes a bald announcement that the attorney work product doctrine applies only if litigation had been anticipated.[13] It would be nice if the courts making this announcement mentioned subsection (c) when they did it, so there could be no mistaking that they were saying subsection (c) is like the federal rule’s tier two – that subsection (c) is only about work product that was prepared for litigation. But these opinions are usually very tersely written, and at best they mention neither subsection (c) nor subsection (d)(2) – which deprives us of the direct and unequivocal sort of announcement that would rescue New York from being unique.
I have come across one case that is admirably direct and unequivocal while mentioning subsection (c). It is a trial court decision from 1983. In this case, the judge observed that our statute has both a subsection (c) and a subsection (d), but nonetheless the judge insisted:
The New York legislative distinction between work product (CPLR 3101, subd [c]) and material prepared for litigation (CPLR 3101, subd [d]) did not remove the work-product exemption from the litigation context. … [N]o reasonable interpretation of the statutes permits the exemption from discovery of documents … prepared with no view toward litigation.[14]
Thank you to the late Honorable Harold Rothwax, the judge in that case. If only an appellate court in New York were so helpful.
A humble proposal
Now here’s my proposal for how to read today’s version of the statute. The proposal is this: Today, subsection (c) is just operating the same way that subsection (b) operates.
Subsection (b) is terse like subsection (c). All subsection (b) says is: “Upon objection by a person entitled to assert the privilege, privileged matter shall not be obtainable.” There are other New York statutes that seem to be telling you what exactly subsection (b) means by “privileged matter.” For example:
CPLR 4502 spells out a “spousal privilege”: “A husband or wife shall not be required, or, without consent of the other if living, allowed, to disclose a confidential communication made by one to the other during marriage.”
CPLR 4503 spells out the attorney-client privilege: “Unless the client waives the privilege, an attorney or his or her employee, or any person who obtains without the knowledge of the client evidence of a confidential communication made between the attorney or his or her employee and the client in the course of professional employment, shall not disclose, or be allowed to disclose such communication, nor shall the client be compelled to disclose such communication, in any action, disciplinary trial or hearing….”
CPLR 4504 spells out a physician-patient privilege: “Unless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.”
CPLR 4505 spells out a sort of priest-and-confessor privilege: “Unless the person confessing or confiding waives the privilege, a clergyman, or other minister of any religion or duly accredited Christian Science practitioner, shall not be allowed [to] disclose a confession or confidence made to him in his professional character as spiritual advisor.”
CPLR 4507 spells out a psychologist-patient privilege: “The confidential relations and communications between a psychologist registered under the provisions of article one hundred fifty-three of the education law and his client are placed on the same basis as those provided by law between attorney and client….”
CPLR 4508 spells out a social worker-client privilege: “A person licensed as a licensed master social worker or a licensed clinical social worker under the provisions of article one hundred fifty-four of the education law shall not be required to disclose a communication made by a client, or his or her advice given thereon, in the course of his or her professional employment….”
So, it seems that subsection (b) of CPLR 3101 is saying that “privileged matter” need not be disclosed, and then we have to look elsewhere for definitions of “privileged matter.” We have to flip through a lot of pages of the CPLR to get to section 4502, but that’s where we start seeing the definitions of 3101(b)’s words, “privileged matter.”
Couldn’t we look at subsection (c) as working the same way that subsection (b) does? Subsection (c) of CPLR 3101 is saying that “the work product of an attorney” need not be disclosed, and then we have to look elsewhere for definitions of “the work product of an attorney.” As it turns out, we don’t have to look far; it’s right there, in subsection (d) of the same statute.
If we look at subsection (c) this way, we never find ourselves asking whether subsection (c) is providing for a different attorney work product doctrine than the one provided for in subsection (d). And we have no need, then, for the handwringing and griping. There was no “botched surgery,” because subsection (c) is not saying anything about what materials are covered by the attorney work product doctrine.
We couldn’t have read the statute this way before the amendment of subsection (d) that added the federal rule’s tier two to that subsection. But anyway, that older version of the statute is no longer the statute that we have. Why not read today’s statute in a way so that it makes sense? We land on a reading under which New York has the same attorney work product doctrine as the federal courts and as every other state, and we don’t have to pretend that the words of the statute are different than what they are.
That’s my proposal. That’s how we rescue New York from being an undesirable sort of unique.
[1] Fed. R. Civ. P. 26(b)(3)
[2] Doe v. Soc’y of the Missionaries of the Sacred Heart, No. 11-cv-2518, 2014 WL 1715376, at *4 (N.D. Ill. May 1, 2014) (“Work product protection is only waived by disclosure to a third party when that disclosure substantially increases the opportunities for potential adversaries to obtain the information.” (internal quotation and edit marks omitted)).
[3] More precisely, the Second Circuit says that the breadth of the waiver is a question of “fairness” that will depend on the specific case. In re von Bulow, 828 F.2d 94, 101 (2d Cir. 1987). Anyway, in litigation, a selective disclosure generally results in a blanket waiver.
[4] Williams & Connolly v. S.E.C., 662 F.3d 1240, 1244 (D.C. Cir. 2011) (“The purposes of the work product privilege are not inconsistent with selective disclosure—even in some circumstances to an adversary. Thus, disclosure of some documents does not necessarily destroy work-product protection for other documents of the same character.” (internal quotation marks, edit marks and citations omitted)).
[5] See CPLR 3101(d)(2).
[6] James, Hoyer, Newcomer, Smiljanich and Yanchunis, P.A. v. Office of Attorney Gen., 27 Misc. 3d 1223(A), at 13 (N.Y. Sup. Ct., N.Y. County 2010); see also Beasock v. Dioguardi Enters., 117 A.D.2d 1016, 1016 (4th Dep’t 1986) (distinguishing subsection (c) from subsection (d)(2) and stating that the former provides an “absolute privilege”).
[7] David D Siegel & Patrick M. Connors, New York Practice § 347 (6th ed. updated December 2024).
[8] Patrick M. Connors, McKinney’s Practice Commentary CPLR 3101, C3101:28 (2018).
[9] Siegel & Connors § 347.
[10] McKinney’s Practice Commentary CPLR 3101, C3101:28 (2018).
[11] Id.
[12] See Hoffman v. Ro-San Manor, 73 A.D.2d 207, 211 n.1 (1st Dep’t 1980) (quoting the statute).
[13] See, e.g., Coastal Oil New York, Inc. v. Peck, 184 A.D.2d 241, 241 (1st Dep’t 1992) (“The work-product privilege requires an attorney affidavit showing that the information was generated by an attorney for the purpose of litigation.”).
[14] In re Grand Jury Subpoena for Documents in the Custody of the Bekins Storage Co., 118 Misc. 2d 173, 176-177 (N.Y. Sup. Ct., N.Y. County 1983) (internal citations omitted).