Work Product Privilege

Utah Rule of Civil Procedure 26 recognizes a privilege for documents “prepared in anticipation of ligation.” See Utah R. Civ. P. 25(b)(5)–(6).  Generally, the purpose of the work product privilege is to preserve the adversarial system and to “[provide] attorneys with a zone of privacy permitting effective client advocacy.” Featherstone v. Schaerrer, 2001 UT 86, ¶ 33, 34 P.3d 194, 205. The material must consist of documents or tangible things, (2) prepared in anticipation of litigation or for trial, (3) by or for another party or by or for that party’s representative.”  Gold Standard, Inc. v. Am. Barrick Res. Corp., 801 P.2d 909, 910 (Utah 1990). Additionally, work product is generally divided into two categories, (1) “work prepared in anticipation of litigation by an attorney” and (2) “core” or “opinion” work product which “encompasses the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative.” S. Utah Wilderness All. v. Automated Geographic Reference Ctr., Div. of Info. Tech., 2008 UT 88, ¶ 24, 200 P.3d 643, 651.

The Work Product Privilege may be waived. See Carey-Canada, Inc. v. Aetna Cas. & Sur. Co., 118 F.R.D. 242, 248 (D.D.C. 1987) (finding that privilege waived in not invoked separately); Gold Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 171 (Utah 1990) (noting that where a privileged document is disclosed under certain circumstances, the privilege may be waived.)

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