Work
Product Case Analysis
Jan.
18, 2006
The
decision is of particular significance in Wisconsin, although this case arises
from Illinois’ courts.
In
the majority of jurisdictions, it is unlikely that a dispute such as this would
even arise, because attorneys are not allowed to assert the work product privilege
against their own clients, although they can assert the privilege to bar the client
from disclosing the materials to anyone else. Sage Realty Corp. v. Proskauer Rose
Goetz & Mendelsohn, 91 N.Y.2d 30, 37 (1997).
Restatement
(Third) of the Law Governing Lawyers sec. 46(2) (2000), states the majority rule:
“On request, a lawyer must allow a client or former client to inspect and
copy any document possessed by the lawyer relating to the representation, unless
substantial grounds exist to refuse.”
In
a state that follows the majority rule, Jones Day would have had no ground for
withholding the five boxes of privileged material in the first instance.
The court
specifically declined to decide whether Illinois follows the majority rule or
not, however, inasmuch as it found that, regardless of whether Jones Day should
have given the privileged materials to its client, the failure to do so could
not be sanctionable in the absence of a subpoena or court order.
Wisconsin,
however, follows the minority rule — notes, research, and other materials
developed by attorneys for use in providing services to the client are the attorney’s
property. In re ANR Advance Transportation Co, Inc., 302 B.R. 607 (E.D.Wis.2003);
Wisconsin Ethics Opinions E-82-7 (1998).
Thus,
a Wisconsin firm could easily find itself in the situation of Jones Day. Had the
Seventh Circuit not reversed the lower court order and sanction, firms would have
had to, as the Seventh Circuit found, “monitor the proceedings” of its
former clients and “inject [themselves] into litigation simply because [they]
possess[] information one of the parties might find useful” — an imposition
on law firms that would be absurd.
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David Ziemer
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David
Ziemer can be reached by email.
