The work product doctrine, which is incorporated into federal discovery Rule 26(b)(3)(A), protects an attorney’s notes, memos, and any writing prepared “in anticipation of litigation” from discovery by the opposing party. This protection extends to materials a third party (such as a valuation expert) prepared at the request of a party or their lawyer in preparation for a civil lawsuit.
Redactions: As part of the Uber securities class action against the ride-hailing and delivery company over its 2019 IPO, the plaintiffs filed a motion to compel production of unredacted documents from PwC (Uber’s auditor), including impairment assessments. The documents were drafted as part of the 2018 impairment review of long-lived assets. The redactions were the same on all these documents in a section describing “significant adverse change in legal factors or in the business climate that could affect the value of a long-lived asset (asset group), including an adverse action or assessment by a regulator.”
Uber asserted that the work product doctrine shielded the redacted portions of the documents from discovery. The firm’s attorneys had “assessed pending and potential litigation and regulatory matters and shared with PwC [their] assessment as to whether rulings in these matters might impact the value of Uber’s assets.” Uber argued that PwC’s memorialization of Uber responses to PwC was protected opinion work product. An in-camera review of the documents confirmed they were prepared because of anticipated litigation, so the court “concludes that the redactions in the impairment assessments are protected by the work-product doctrine.”
There were other redacted documents as part of this matter, including forensic memoranda, emails, and management representation letters. The court ruled that the work product doctrine protected all the redactions in the documents at issue.
The case is Boston Ret. Sys. v. Uber Techs., Inc., 2024 U.S. Dist. LEXIS 27976; 2024 WL 665647, and a case analysis and full court opinion are on the BVLaw platform.