Complex Litigation: Work Product Protection

Abstract

Commentary and analysis of the invocation of attorney-client privilege and work product protection during discovery in class action litigation. The article discusses issues that arise during pre-certification discovery conducted to support or oppose satisfaction of the Rule 23 requirements for class certification. In particular, the article focuses on requests for disclosure of pre-certification questionnaires furnished to potential class members. In diversity class actions, many federal courts look to state law principles relating to privileges to determine the standards that apply to attorney-client privilege and the work product doctrine. Some courts apply the privileges to prevent disclosure of requested materials; other courts decline to apply the privileges and order disclosure.