work product doctrine in Delaware

2024Thus, the documents and communications there is no principled reason to question applicability of the work product doctrine here. 129 Zirn, 621 A.2d at 782 (citing Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 715 (Del.

2024Apr. 9, 1976)). 130 See id., 621 A.2d at 782. 131 Liberty’s Second Mot. to Compel at 7-9. 132 See Hartree Privilege Log at 3 (certain documents withheld under the work product doctrine dated as “11/15/2021-11/16/2021”).

2025Buttonwood, 2018 WL at *6 n. 28 (citing Wal- Mart Stores, Inc., 95 A.3d at 1280–81) (“For the same reasons that Garner does not apply to the privileged documents, I will not order production of documents withheld on the basis of the work-product doctrine.”).

2019See generally Wal-Mart, 95 A.3d at 1280–1281 (affirming this Court’s use of the “same reasoning [as with a Garner analysis] for its decision regarding the work-product doctrine.”). 263 Along with its counsel, PAC. 53 Like Oracle itself, many of the individuals and entities involved in this litigation objected to the production of certain documents based on attorney-client privilege.264 In their general and specific objections to the Subpoenas, the SLC and PAC made this objection.265 Furthermore, in their respective motions for (and joinders to) protective orders Defendants Ellison,266 Catz,267

2020The SLC has the initial burden to establish that the protection applies for 43 The SLC has also invoked attorney-client privilege over the summary of evidence (Item 45), draft report (Item 49), and the financial analyses and damages models (Items 52, 53, and 54), but, because I find that the Lead Plaintiff cannot overcome those items’ work product protection, and that such protection has not been waived, I need not reach whether the SLC has also validly asserted attorney-client privilege. 44 SLC’s Privilege Log (throughout). 45 Grimes v. DSC Commc’ns Corp., 724 A.2d 561, 569 (Del.

2014“The work product doctrine is intended to protect „materials an attorney assembled and brought into being in anticipation of litigation.‟” Grimes v. DSC Commc’ns Corp., 724 A.2d 561, 569-70 (Del.

2018R. 26. 2 Hickman v. Taylor, 329 U.S. 495 (1947). 3 party's attorney, consultant, surety, indemnitor, insurer or agent), the party demanding discovery must show a substantial need for the material, and that the party is unable to discover the information without undue hardship.3 However, “core or opinion work product that encompasses the mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation is generally afforded near absolute protection from discovery.”4 A party asserting the work product privilege bears the burde

2015DISCUSSION Under Delaware law, application of the work product doctrine depends upon the reason why the document was created.44 “Delaware courts have expressly rejected the primary purpose test, which asks whether the primary purpose of the document [is] for litigation, in favor of the ‘because of litigation’ test.” 45 If the document was 40 329 U.S. 495 (1947). 41 Del.

2020Co., 653 A.2d 254, 262 (Del. 1995)) (“[A] party seeking discovery covered by the work product privilege must show a substantial need for non-opinion work product and a more substantial need for opinion work product in order to gain access to the work product.” (internal quotation marks omitted)); e.g.

1997Tackett, 653 A.2d at 262 .

1995Hercules, 434 F.Supp. at 156 .

1993Hercules Inc. v. Exxon Corp., D.Del., 434 F.Supp. 136, 150 (1976).

2022See Halbach v. Boyman, 872 A.2d 120, 124 (N.J.

2019The attorney-client privilege must be protected because it “promote[s] ”57 and extends “to all freedom of consultation of legal advisers by clients communications, whether written or oral, made for the purpose of facilitating the rendition of professional legal services.”58 The work product doctrine is equally important because it “protect[s] the privacy of lawyers in their work and encourag[es] the freedom of lawyers from interference in the task of preparing their clients' cases for trial.”59 54 Orville v. Division ofFamily Services, 759 A.2d 595, 598 (Del.

2019Mar. 30, 2000). 55 Sullz`van v. Mayor ofTown of Elsrnere, 23 A.3d 128, 135 (Del.

2005Sutton, 1996 WL 659002 , at *14-15 (Del.Super.Aug. 30, 1996) (explaining that where a party has substantial need of materials and is unable without due hardship to obtain the substantial equivalent, the court may order production of materials otherwise protected by the work product privilege) citing Tackett v. State Farm Fire & Cas., 558 A.2d 1098, 1102 (Del.Super.1988) ("Where the benefit to the resolution of the case outweighs the potential injury to the party from whom discovery is sought, disclosure may be required.”).

1995See United States v. Zolin, 491 U.S. 554, 569-70 , 109 S.Ct. 2619, 2629-30 , 105 L.Ed.2d 469 (1989). *261 The work product doctrine finds its modern articulation in Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947).

1995See United States v. Zolin, 491 U.S. 554, 569-70 , 109 S.Ct. 2619, 2629-30 , 105 L.Ed.2d 469 (1989). *261 The work product doctrine finds its modern articulation in Hickman v. Taylor, 329 U.S. 495 , 67 S.Ct. 385 , 91 L.Ed. 451 (1947).

1995This Court exercises de novo review on the question of whether a trial court correctly applied the attorney-client privilege, Citadel Holding Corp. v. Roven, Del.Supr., 603 A.2d 818, 825 (1992), and the work product doctrine.

1995“At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160, 2170 , 45 L.Ed.2d 141 (1975).

1995“At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.” United States v. Nobles, 422 U.S. 225, 238 , 95 S.Ct. 2160, 2170 , 45 L.Ed.2d 141 (1975).

1995See Upjohn, 449 U.S. at 401-02 , 101 S.Ct. at 688-89 (“While we are not prepared at this juncture to say that [opinion work product] is always protected by the work product rule, we think a far stronger showing of necessity and unavailability by other means ... would be necessary to compel disclosure.”); Nobles, 422 U.S. at 238 , 95 S.Ct. at 2170 (noting that the work product doctrine grants counsel “a privileged area [not an absolute area] within which he can analyze and prepare his client’s case”).

1995See Upjohn, 449 U.S. at 401-02 , 101 S.Ct. at 688-89 (“While we are not prepared at this juncture to say that [opinion work product] is always protected by the work product rule, we think a far stronger showing of necessity and unavailability by other means ... would be necessary to compel disclosure.”); Nobles, 422 U.S. at 238 , 95 S.Ct. at 2170 (noting that the work product doctrine grants counsel “a privileged area [not an absolute area] within which he can analyze and prepare his client’s case”).

1986In Thomas Organ Co. v. Jadranska Slobodna Plovidba, 54 F.R.D. 367, 372 (N.D.Ill.1972), the Illinois District Court held that any report or statement made by or to a party’s agent (other than to an attorney acting in the role of counsellor), which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney’s legal expertise, must be conclusively presumed to have been made in the ordinary course of business and thus not within the purview of the limited privilege of Rule 26(b)(3) ...