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.
