For many, the shift to working from home during the pandemic made clear that the use of a physical “client file” for a matter may be becoming a thing of the past. Instead, attorneys routinely access and create documents in a myriad of ways, including through online document management platforms, email accounts, and note-taking applications.

As a result, when the client asks for a copy of its “file” at the end of a representation, the answer may not be straightforward. It may be obvious that some documents are typically included, such as court filings or letters sent to opposing counsel. But it may be less clear whether all attorney-generated documents—including memos or notes—should be provided as part of the client file or in response to a subpoena.

The client file typically includes nonpublic materials, such as communications between attorney and client, but the client may also seek outlines or drafts, internal communications, memoranda, legal or other research, or even the attorney’s handwritten notes. Depending on the jurisdiction, this type of request may compel the attorney or firm to consider whether and to what extent the client is entitled to documents that constitute the attorney’s work product.

A similar issue can arise where the client file is requested by a third-party through a subpoena. The subpoena may demand “any and all” documents related to a particular representation.  Again, the firm may need to decide what documents are specifically requested, whether there are categories of documents that should be withheld, or whether the firm should move to quash the subpoena (and potentially expend a great deal of time and money resolving the ensuing dispute).

Whether made by clients or third parties, in many cases the requests may implicate the work product doctrine. Since the doctrine’s inception in the U.S. Supreme Court’s seminal case of Hickman v. Taylor, the work product doctrine has evolved at both the federal and state levels. The following are some steps many lawyers consider in evaluating requests for work-product materials.

Requests for the Client File

California is unique in that the rule governing the return of the client file provides comparatively more guidance than the corresponding ABA model rule adopted in other states. Rule 1.16 of the California Rules of Professional Conduct provides that, upon termination of a representation, “subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property.” “Client materials and property” is then defined to include “correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.”

Even with that guidance, there remains potential uncertainty regarding what might be deemed “reasonably necessary to the client’s representation.” The question of whether work product comes within the scope of Rule 1.16 might require a consideration of the exact nature of the work product doctrine under California law. Indeed, California law can provide either absolute or qualified work product protection depending on the nature of the documents.

Further analysis is also needed where the request for documents is made by a client.  Jurisdictions can take different approaches in determining whether the work product privilege is a relevant consideration when a client seeks the production of documents from her or his attorney. In some jurisdictions, purely internal memoranda, non-substantive communications, or drafts are considered the property of the attorney or law firm and need not be produced to a client who is seeking the “client file.” Other jurisdictions, including California, view the client file as essentially the property of the client, and thus the work product doctrine has no applicability. Specifically, CCP 2018.080 provides that “[i]n an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.”

Consider the Author

An important step in analyzing whether work product protection applies is considering who created the materials. Depending on the nature and scope of the representation, many different people could have a role in creating work product material. The most obvious are the client and its lawyer. However, other individuals affiliated with the client and lawyer, and those who are retained in connection with a representation, may generate both general or opinion work product that is typically subject to some level of protection.

When it comes to non-client requests for information from the file relating to experts, the inquiry can be more complicated.  Under the Federal Rules, for example, the answer often lies in whether the expert will testify at trial or whether the expert is retained as a consultant. If the former, the work-product doctrine may not protect the facts known or opinions held by those experts. After all, the purpose of retaining a testifying expert is to use his or her opinions, and therefore the facts used to form those opinions, at trial. For clients, though, Rule 1.16 may require the production of “experts’ reports and other writings.”

Be Careful To Avoid an Inadvertent Waiver

It is important to carefully consider the issues when determining whether documents might be subject to the work product privilege. Part of that diligence may require an attorney to know the rules of the jurisdiction before disclosing or producing work product documents. Although the ability to claw back already produced documents can vary, it may be difficult to return to the status quo once documents are produced that may have been protected from disclosure.

Requests for the client file are not uncommon. By understanding and evaluating the key issues, attorneys can limit their risks when responding.