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Lund v. St. Paul Fire & Marine Insurance Co.2/11/2002
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does not extend to information which an attorney secures from a witness while acting for his client in anticipation of litigation. Nor does this privilege concern the memoranda, briefs, communications and other writings prepared by counsel for his own use in prosecuting his client's case; and it is equally unrelated to writings which reflect an attorney's mental impressions, conclusions, opinions or legal theories. 329 U.S. at 508.
However, for reasons of policy and justice, the Court held that the materials were nevertheless protected by a "work product doctrine." The Court explained:
In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he 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. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways - aptly though roughly termed by the Circuit Court of Appeals in this case [citation omitted] as the "Work product of the lawyer." 329 U.S. at 510-511.
As articulated by the Supreme Court, the work-product doctrine is not an absolute privilege. The Court held that " here relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had." 329 U.S. at 511.
In Montana, the work-product doctrine is found in Rule 26(b)(3) of the Montana Rules of Civil Procedure, which provides in pertinent part:
party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Interpreting the rule against the backdrop of Hickman, the Montana Supreme Court has held that the attorney work-product doctrine " incorporated into Rule 26(b)(3), gives a qualified immunity to materials prepared 'in anticipation of litigation,' and nearly absolute immunity to the 'mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party to the litigation.'" State of Montana, ex rel., Burlington Northern Railroad Company v. District Court of the Eighth Judicial District, 239 Mont. 207, 217, 779 P.2d 885, 892, quoting Kuiper, supra, 193 Mont. at 463, 632 P.2d at 701.
The Montana Supreme Court has addressed the application of the work-product rule to an insurer's claims file, although never in the context of a workers' compensation claim. The seminal case is Kuiper v. District Court, 193 Mont. 452, 632 P
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