Balancing the Scales of Justice for Pro Se Homeowners

Pro per’s CAN Assert Work Product Privilege!

Posted by on Feb 17, 2015

As a pro per one of the many challenges is protecting the research and work you do, on your own behalf, as an attorney.  Often when responding to discovery, the opposing counsel will say “you are not an attorney, and therefore cannot invoke privilege”. However, that is not true.  According to Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969, 970 [98 Cal.Rptr.3d 422] (Meza):

An attorney has a qualified privilege against the discovery of general work product and an absolute privilege against disclosures of writings containing an attorney’s impressions, conclusions, opinions, or legal theories (Code Civ. Proc., § 2018.030). Although the attorney is the holder of the work product privilege, a client has standing to assert the privilege on behalf of a former attorney who is absent from the litigation. The privilege may also be asserted by a pro se litigant because the privilege is intended for the protection of litigants, not just attorneys; See also Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 134 [86 Cal. Rptr. 2d 180]

Meza takes a deep dive into when and how the work product privilege may be invoked under a common interest doctrine; while Meza focuses on an attorney “switching sides” during litigation, the value of understanding what rights you may have as a pro per investigating the good, the bad, and the ugly of your situation needs to be done with the freedom of knowing your work is protected.   This doesn’t mean that anything you research, or produce, is protected by work product privilege but it does mean that can protect key research for your case.  It also means in pro per you have the rights of privilege.

In persona litigants may assert the work product privilege. Section 2018 does not define the term “attorney,” and since that term has been applied to other statutes without distinguishing between attorneys and unrepresented litigants, the term was ambiguous. However, an amendment sponsored by the California State Bar, which was adopted by the Legislature almost verbatim, emphasized the need to limit discovery so that a less able or willing practitioner may not take undue advantage of his or her adversary’s efforts. This policy is important not only for attorneys, but also for litigants acting in propria persona. The work product privilege exists to promote the adversary system, and allowing litigants appearing in propria persona to assert the privilege furthers that purpose. In determining whether a particular matter is privileged as work product, the court should be guided by the policy of promoting diligence in preparing one’s own case, rather than depending on an adversary’s efforts.    See 2 Witkin, Cal. Evidence (3d ed. 1986) § 1145 et seq.

In Lohman v. Superior Court (1978) 81 Cal. App. 3d 90 [146 Cal. Rptr. 171] the pro per invoked his rights not as a client but rather as one performing the functions of an attorney.  Ultimately the Courts held the basic fundamental purpose of invoking the privilege is for the purpose of protecting the client, not just attorneys and therefore, a pro per has those protections.  Since “work product” is not defined, whether specific material is work product must be resolved on a case-by-case basis. (City of Long Beach v. Superior Court (1976) 64 Cal. App. 3d 65, 71 [134 Cal. Rptr. 468].) If the material sought would be subject to discovery from a represented party, it will be discoverable from a litigant appearing in propria persona. Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135 [86 Cal.Rptr.2d 180].

So how do you tell when it is appropriate to invoke the work product privilege and when not to?  The last thing you need is to be hauled into court on a Motion to Compel and then issued sanctions because the privilege in fact does not apply! The ultimate question to ask  yourself  is if the material being requested in discovery would be discoverable if it was your attorney’s communication, insights, etc. –  if the answer is no, it would be attorney work product – then consider invoking the privilege.  If the answer is yes, because your attorney would not be covered by the privilege, then disclose.


Hope this helps!





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