Is the Government’s Work Product Prepared During a Criminal Case Subject to Discovery in Later Civil Actions?

September 3, 2003

One of the many differences between the attorney-client privilege and the work product doctrine is their duration. The former lasts forever, while the courts take differing positions on the latter.

In Klein v. Jefferson Parish School Board, No. 00-3401 SECTION: “T” (4), 2003 U.S. Dist. LEXIS 6514 (E.D. La. Apr. 10, 2003), several school students were the subject of a criminal investigation for having beaten another student. After that criminal case ended, civil plaintiffs suing the school and other defendants sought discovery of the criminal investigation file. The court cited several other court decisions in holding that prosecutors in a closed criminal matter could not assert work product protection when civil litigants sought their files in later civil litigation.

The debate over the temporal duration of work product protection is interesting for its own sake, and also because it highlights a difference between the work product doctrine and the attorney-client privilege.