Work Product Privilege

"The work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." California Code of Civil Procedure section 2018, subdivision (b). Subdivision (c) provides: "Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances." Code Civ. Proc., § 2018, subd.(c).

It is the burden of the party asserting the work product privilege to prove that the material in question is work product and therefore privileged. BP Alaska Exploration, Inc. v. Superior Court, (1988), 199 Cal.App.3d 1240, 1252 ["the party asserting a privilege has the burden of proving the essential elements of the privilege."]

In BP Alaska supra, the court held that the crime-fraud exception to the attorney-client privilege does not apply to attorney work product because, by its terms Penal Code section 956 expressly applies to communications ordinarily shielded by the attorney-client privilege, while the work product rule encompasses a companion but separate document protection. BP Alaska supra, 1249.