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work product privilege is intended to protect documents that
reveal an attorney’s mental impressions and legal theories and
that were prepared in contemplation of litigation. Id. at 509-
510. The Supreme Court, in holding that certain documents were
privileged, explained:
Proper preparation of a client’s case demands that * *
* [an attorney] assemble information, sift what he
considers to be the relevant from the irrelevant facts,
prepare his legal theories and plan his strategy
without undue and needless interference. * * * This
work is reflected, of course, in interviews,
statements, memoranda, correspondence, briefs, mental
impressions, personal beliefs, and countless other
tangible and intangible ways * * *
Id. at 511.
There is no doubt that the documents compiled by the
prosecuting and defense attorneys were organized in contemplation
of litigation. With respect to the 10,000 Bates numbered pages
received from the prosecuting attorney by petitioner’s defense
attorney, there is no need to protect them, even if they did
reflect the prosecuting attorney’s mental impressions. Any
privilege that may have attached to the 10,000 pages when they
were compiled by the prosecuting attorney was abandoned when the
documents were turned over or disclosed to petitioner’s defense
attorney.4
4 If petitioner’s defense attorney had placed notations on
the documents that constitute work product, those notations may
be excised to the extent that petitioners can show that such
notations are privileged.
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Last modified: May 25, 2011