Breaking the shield

The limits to attorney work-product protection for prosecutors and in civil claims related to criminal matters

Olivia K. Leary
2022 October

One of the central principles of legal representation is the concept that an attorney’s mental impressions or opinions shall be protected. This protection is an extension of attorney-client privilege. Attorney work product is protected in order to allow an attorney to fully prepare their cases thoroughly and to conduct a robust investigation into their client’s case without the fear that their thoughts, opinions, theories, or conclusions will be discoverable by the other side. This purpose is codified in Code of Civil Procedure section 2018.020, subdivision (a) and further explains that this is to prevent attorneys from “taking undue advantage of their adversary’s industry and efforts.” (Code Civ. Proc., § 2018.020, subd. (b).) The work product doctrine protects the discovery of an attorney’s interpretive work in both a civil and criminal realm. Although applicable in both spheres, a prosecutor’s work product is further constrained by a criminal defendant’s rights and the prosecutorial duties to share information.

The Code of Civil Procedure does not provide an explicit definition in the statute, and a determination of whether work product protection actually applies should be performed on a case-by-case basis. As explained in a foundational case, Coito v. Superior Court, generally, interpretive material, or material “created or derived from an attorney’s work reflecting the attorney’s evaluation of the law or facts,” constitutes work product. (Coito v. Superior Court (2012) 54 Cal.4th 480, 488.) However, material that is non-interpretive, or does not derive from an attorney’s own opinions, does not garner work product protection. Non-interpretive information may contain the identities of witnesses, location of physical evidence, and other fact-based information. (Id. at 489.) This material is not protected and therefore discoverable.

When a document contains both interpretive material and non-interpretive material, such that work product attaches to a portion of the information but does not fully encompass its content, a dispute regarding what is protected and what is discoverable often occurs. Recognizing when this protection applies, how the protection may apply differently in a criminal prosecution rather than a civil matter, and what circumstances allow for the protection to be pierced, empowers the knowledgeable attorney to conduct thorough discovery in a variety of legal arenas.

Absolute vs. qualified work product

Work product and the extent of the protection provided is generally dependent on whether the evidence at issue constitutes absolute or qualified work product. In a practical sense, often materials at issue will contain both information that is attorney work product and unprotected and discoverable non-interpretative material, like facts. Absolute work product recognized in a writing that “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” is not discoverable under any circumstances. (Code Civ. Proc., § 2018.030, subd. (a).) Conversely, qualified work product applies to attorney work that is also not generally discoverable “unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b).)

For instance, actual identities of witnesses would not constitute work product. However, an attorney’s notes regarding an interview of a witness could garner work product protection as the notes likely contain attorney impressions, opinions, and the like. However, whether the notes are absolute work product or qualified work product hinges on the nature of the interpretive material, what specific attorney impressions or strategies may be revealed, whether the information is available in other forms and whether the party seeking this material will be unfairly prejudiced should it not be made available.

Analysis for work product protection generally

In evaluating whether the work product protection applies to a specific situation, case law and the principles underlying the doctrine must be used to assess its application. Again, materials containing solely attorney opinion or interpretive work are never discoverable, whereas material that is non-interpretive or factual garners no work product protection. However, when the material sought contains both interpretive work and fact-based information, these are considered qualified work product and may or may not be discoverable.

For practical application, a party asserting protected work product to avoid production bears the burden to establish that the work product exists. Often, when specific documents are at issue, a court must conduct an in-camera review in order to assess whether the asserted work product is valid. (Evid. Code, § 915, sub. (b).) Whether a specific document contains work product must be assessed on a case-by-case basis. Thus, a review of the case law that is related to the situation at hand is often necessary to refute or support an assertion of work product protection.

Civil law and criminal law: Disparate treatment of work product protection

The analysis of whether work product protection applies in a civil matter generally requires a review of the item at issue, identification of whether it is absolute or qualified work product, and then an assessment of the applicable jurisprudence to conduct the case-by-case review. However, in a criminal matter, the assessment of work product is often complicated by competing duties, rights and timing of the specific discovery request. The duty to produce certain work product and notes, even those that may contain attorney impressions or other interpretive material, is particularly heightened with regard to a prosecutor to a criminal defendant. This and other factors that may weigh on work product protection in the criminal sphere and when arguments asserting the protection can be defeated will be discussed below.

Investigatory phase of a criminal matter – Not protected work product

Again, in both civil and criminal matters, work product protection does not apply to factual material, even if that information is discovered by an attorney or contained within an attorney’s notes. In a criminal matter there are two phases, the investigation phase and the prosecution phase, and the prosecutor can function both as an investigator and a prosecutor at trial. Unlike the work generated in preparation of trial, which garners work product protection, the investigation conducted by a prosecutor constitutes a factual gathering rather than work arising from a prosecutor’s strategies. (Williamson v. Moore (11th Cir. 2000) 221 F.3d 1177, 1182; People v. Angel (Colo. 2012) 277 P.3d 231, 235.) A prosecutor’s initial fact-gathering phase is investigatory, therefore factual, and is not protected as absolute work product. (People v. Angel (Colo. 2012) 277 P.3d 231, 235.) Thus, investigatory or fact-finding work conducted by a prosecutor is discoverable as it is not shielded by work product protection.

A prosecutor’s function as an investigator and their actions in the investigatory phase are treated distinctly from the attorney’s role as an advocate at trial. Of course, prosecutors are provided absolute immunity from prosecution when they act as advocates. However, a prosecutor engaged not as an officer of the court, but in investigative or administrative tasks, does not receive absolute immunity. (Fogle v. Sokol (3d Cir. 2020) 957 F.3d 148, 160; Van de Kamp v. Goldstein (2009) 555 U.S. 335, 342; Singleton v. Cannizzaro (2020) 956 F.3d 773, 781.) Accordingly, the protection afforded to a prosecutor both in terms of immunity and work product protection hinges on whether the action takes place in an investigatory or prosecutorial function.

As stated above, the general principle of work product protection holds that factual information on its own does not garner its protection. Further, information that contains both factual information and attorney work product is discoverable should the factual information be separated from the work product or is necessary for some other reason. For instance, information regarding items provable at trial, the identity and location of physical evidence, or witnesses cannot be brought within the work product doctrine’s protection simply by transmitting it to the attorney. (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 72.) Evidentiary facts, such as witness statements, are also generally not work product. (Hobbs v. Municipal Court (1991) 233 Cal.App.3d 670; People v. Collie (1981) 30 Cal.3d 43, 60.)

Brady v. Maryland and exculpatory evidence – Work product does not block the duty to provide evidence relevant to guilt

As stated earlier, attorney work product is grounded in the concept of attorney-client privilege. However, unlike a private civil attorney, a prosecutor has no individual client and instead serves the interests of the public they represent. Further, the interests of a defendant are paramount when facing a criminal prosecution and, therefore, a freer exchange of facts and information between the prosecutor and criminal defendant is required. As stated in the opinion written by Justice Brennan in the seminal case, Brady v. Maryland, a “prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant.” (Brady v. Maryland (1963) 373 U.S. 83, 87.) Should a prosecutor withhold the evidence identified in Brady v. Maryland, even inadvertently, the prosecutor becomes cast “in the role of an architect of a proceeding that does not comport with standards of justice, even though, as in the present case, his action is not ‘the result of guile.’” (Ibid.)

Therefore, unlike a private attorney, prosecutors must make available to criminal defendants much more evidence and information leading up to criminal trial. Should district attorney investigations result in the discovery of exculpatory evidence relevant to the defendant, such evidence weighing on guilt must be disclosed to the defense. (Brady v. Maryland (1963) 373 U.S. 83, 87; Youngblood v. West Virginia (2006) 547 U.S. 867, 869-70; Tennison v. City & County of San Francisco (9th Cir. 2008) 570 F.3d 1078, 1087.) Further, a prosecutor’s opinions and mental impressions are discoverable under Brady and not protected work product should it contain “underlying exculpatory facts.” (Morris v. Ylst (9th Cir. 2006) 447 F.3d 735, 742.)

Duty to disclose impeachment evidence is also not defeated by work product protection

In addition to the Brady requirement to provide exculpatory evidence to a criminal defendant, a prosecutor cannot hide behind work product to avoid producing impeachment evidence concerning the credibility or bias of witnesses at trial. A recent case, People v. Deleoz, held that notes by a district attorney regarding relevant underlying facts to a criminal case were not protected work product. (People v. Deleoz (June 30, 2022, No. H047775) [2022 Cal.App.LEXIS 582, at **31-32].) In the Deleoz case, the defendant was charged with murder. The defendant sought the release of two internal memoranda prepared earlier by the district attorney concerning other investigations involving the medical examiner who rendered pertinent opinions regarding cause of death of the victim and that implicated the defendant. The defendant had sought that these memoranda be released without redactions for impeachment evidence ahead of the medical examiner’s testimony at trial. The trial court had denied the defense’s request to disclose the memoranda, finding that the redacted portions constituted work product and were not Brady exculpatory evidence material.

On appeal, the court found that the redacted portions of the memorandum warranted “an evaluation by the trial court for relevance as potential impeachment evidence” and the portions concerning past statements by the witness at issue did not constitute attorney work product. (Id. at **32.) Thus, the court in Deleoz further held that investigative material, even if prepared by an attorney, is not barred from discovery by the work product protection when it contains factual matters that pertain to bias and impeachment evidence.

Civil claims related to criminal matters

Work product protection arises from the goal to maintain confidentiality in order to allow an attorney to completely advocate on behalf of their client throughout the case and even after the matter has resolved. However, prosecutors possess a different client relationship than a traditional advocate. As attorneys that represent and act for the interest of the public and the pursuit of justice, the concerns regarding continuing client confidentiality after resolution of the underlying matter are much more limited once that matter has resolved.

These competing interests and the effect of the work product doctrine during an active criminal action renders the protection inapplicable to the investigatory phase, exculpatory evidence and impeachment evidence, but applicable to certain attorney interpretive work including trial preparation. The need for the work product protection is reduced when a criminal matter has resolved. A district attorney cannot shield their work product from later production when it is generated during the criminal case: “because the district attorney does not have ‘a “client” as such,’ confidentiality regarding the fruits of investigations of a public prosecutor are governed exclusively by Evidence Code section 1040.” (People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387; 398-399.)

The protection for prosecutorial work product does not extend to a later civil case that arises from the criminal matter, should new parties be involved. (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 121-122.) In the Shepard v. Superior Court case, the district attorney had investigated police officers concerning a use-of-force incident. Subsequently, and after the criminal matter had resolved, plaintiffs in a related wrongful death action sought discovery of the district attorney’s notes regarding this use-of-force investigation. Although the district attorney objected to this request on the basis of protected work product, the Supreme Court held that work product did not apply to this situation: “[W]e have concluded that the so-called ‘work product doctrine’ is wholly inapplicable in the circumstances of this case.” (Shepherd v. Superior Court, supra, 17 Cal.3d 107, 121-122.)

Similarly, in Doubleday v. Ruh, work product protection for work generated related to a criminal prosecution was determined to be inapplicable with regard to the subsequent civil case alleging improper criminal prosecution. Therefore, the prosecutor’s work was discoverable in this separate action. (Doubleday v. Ruh (E.D.Cal. 1993) 149 F.R.D. 601 at 605-606.) With “the civil discovery of a criminal litigation file . . . work product immunity does not apply to criminal files in such a situation, and . . . the present party [the County] is not a ‘client’ by or for whom the work product was prepared.” (Id. at 606.)


The limits of the work product protection in situations, particularly in the criminal sphere, should be evaluated to ensure complete discovery of relevant materials. Within the criminal realm, further competing interests, duties, and rights apply to chip away at work product protection for a prosecutor’s work. The holding in Brady v. Maryland, establishing the duty of a prosecutor to release all exculpatory evidence, is often mistakenly viewed as the sole significant exception to work product protection in a criminal action. However, in reality, other interests often apply to allow for discovery of a broad swath of evidence during a criminal action and after it has resolved.

Due to the special role of district attorneys as both investigator and prosecuting attorney throughout the pendency of a criminal matter, as well as the overriding public interest in reaching a just outcome, work product is further abridged. When conducting fact gathering, a prosecutor is not acting as an advocate, but as a fact finder. Therefore, investigative material and impeachment evidence, regardless of whether it is exculpatory per Brady, is not absolutely protected work product and can be discoverable. Further, no work product attaches in a subsequent civil action with separate parties involved.

The attorney work product doctrine serves to protect attorney strategies, interpretations and opinions such that their efforts working up a case will not be available to the opposing side. The strength of this protection, whether it is absolute or qualified, and whether the information will be released, depends on the nature of the materials at issue, the subject matter contained within the documents, and the negative consequences to the party seeking the information should it be denied. A case-by-case analysis and an understanding of the competing rights and responsibilities at issue is necessary to fully analyze whether the material is barred or discoverable under work product protection.

Olivia K. Leary Olivia K. Leary

Olivia K. Leary is a member of the Rains Lucia Stern St. Phalle & Silver, PC Personal Injury Group. She represents people who have suffered serious injury as a result of automobile accidents, defective products, dangerous premises, negligence, and intentional torts.

Copyright © 2024 by the author.
For reprint permission, contact the publisher: