Q: qualified work-product privilege

A: When an attorney represents a non-party to a lawsuit, the work they do for that non-party might not automatically qualify for work-product protection. This is because the privilege is primarily designed to protect materials prepared in anticipation of litigation involving the parties to the case. If the attorney’s work for the non-party isn’t directly related to your specific case, it may not fall under this protection.

Additionally, the scope of qualified work-product privilege can vary depending on how closely the attorney’s work for the non-party aligns with the litigation strategy. If the attorney is sharing information or collaborating in a way that benefits the non-party without serving your defense, the court might determine that the materials are not protected. This lack of protection can allow opposing parties to access those materials, potentially weakening your position.

It’s important to discuss the specifics of your situation with your attorney to understand how the work-product doctrine applies. They can help ensure that any collaboration with non-parties doesn’t inadvertently compromise your case. By carefully managing these relationships and the information shared, you can better protect your interests in the lawsuit.

A: In California, the qualified work-product privilege generally protects materials prepared by or for an attorney in anticipation of litigation. This privilege can apply even if the attorney is representing a non-party witness, not just a defendant or a party to the lawsuit. The purpose of the work-product doctrine is to shield an attorney's strategies, mental impressions, and legal research from discovery by the opposing side, allowing attorneys to prepare their cases without fear of undue intrusion.

However, for non-party witnesses, the privilege may not be as absolute. If an attorney is representing a non-party witness, and the materials or communications are made in anticipation of litigation or as part of legal strategy, they can still be protected under the work-product privilege. The fact that the attorney doesn’t represent the defendant doesn't automatically waive this protection. What matters is the context in which the materials were created, not who the attorney represents.

That said, if the non-party's attorney creates materials that are purely factual or administrative and don’t contain legal theories, those might not be protected. It’s not a "one size fits all" rule, and the level of protection often depends on the specific nature of the materials in question. Courts may assess the materials on a case-by-case basis to determine whether they qualify for the work-product privilege. So, while there can be work-product protection for a non-party witness, the extent of that protection might vary depending on the circumstances.