Info From Journalists Isn't 'Work Product'

Jonathan Handler is quoted in an article, "Info From Journalists Isn't 'Work Product'", published by Massachusetts Lawyers Weekly. The article discusses the U.S. District Court's decision in Echavarria v. Roach, which addressed whether the information an attorney receives through an informal relationship with investigative journalists while representing a man appealing a criminal conviction constitutes attorney work product and is therefore protected from disclosure in discovery.

Handler told Massachusetts Lawyers Weekly the Echavarria case "highlights the 'daylight' between the scope of work product protection in the federal and state courts." In U.S. v. Textron, he noted, the First Circuit held that the work product doctrine did not shield tax accrual work papers relating to a completed transaction from an IRS summons, but previously, the Supreme Judicial Court (SJC) reached a seemingly contradictory decision in Comm'r of Revenue v. Comcast, determining that memoranda prepared by accountants to help structure a future transaction were protected work product.

"The differing result flowed in large part from the different tests each court adopted, each based on the fundamental question of what it means for a document to be 'prepared in anticipation of litigation,'" Handler explained. The First Circuit's test, "prepared for use at trial or in litigation," was narrower than the SJC's "because of" test, he said.

"Under the 1st Circuit approach, unless a document was prepared exclusively or at least primarily to assist in litigation, there is no work product protection," Handler continued. "In contrast, under the SJC approach, even if documents were prepared for a business purpose, they can be protected if considerations of potential future litigation played a role in their creation."