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Attorney's Work Product Protection

New Jersey Court Rule 4:10-2(c) provides protection against disclosure to the work product of a party's attorney prepared in anticipation of litigation, including the "attorney's mental impressions, conclusions, opinions or legal theories." A party may obtain such materials from an adverse party only upon a showing that the party has a substantial need for the materials and is unable, without undue hardship, to obtain the substantial equivalent by other means. The fundamental test of applicability of the work product privilege is whether the materials sought to be discovered were prepared in anticipation of litigation rather than in the ordinary course of business.

Unlike the attorney-client privilege, which only protects communications between an attorney and client, the work product doctrine includes materials prepared by people other than the attorney. In order to be protected by the work product doctrine, however, the materials must still have been prepared in anticipation of litigation. For example, in Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992), the wife was advised by her attorney to keep a diary about specific events occurring between her and the husband. This diary was subpoenaed by the husband's counsel, but was not produced as the wife's counsel claimed the attorney's work-product and the attorney-client privilege. The wife's attorney told the judge that he had directed the wife to keep a diary of specific events when she consulted him about her marital problems. He stated that the diary was a direct result of advice given pursuant to an attorney-client relationship and therefore fell within the privilege. According to the attorney, the diary was used by him to formulate ideas for the wife's divorce. The court found that the wife's diary was work product prepared at the request of her attorney in a domestic violence matter. There was no showing that the husband could not obtain pertinent information to defend the domestic violence charge from a less intrusive source or was in any way prejudiced in preparing for this hearing by the preclusive ruling. Thus, diaries kept by clients regarding their attorneys' advice for litigation purposes have been held to be protected by the work-product privilege.

Still, Rule 4:10-2(e) provides that when a party withholds information otherwise discoverable under the New Jersey's Court Rules by claiming that it is subject to protection as work product, the party must make the claim clearly and describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

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