[impossiblefork]

Yes, but he's still using it to prepare his legal arguments and to understand the law.

The reason attorney-client communication is privileged is so that people won't interfere in people's preparation of their case, not because the lawyer is magic. The principled thing is for the courts to apply principles like this based on the principle.

[asdfasgasdgasdg]

According to the ruling’s citations, the purpose of the privilege is to provide protection for the mind of the advocate. If you’re not the advocate and you’re not talking to the advocate the privilege doesn’t apply. Should-bes in this case are imponderable to me but that appears to be what-is.

[impossiblefork]

Yes, I think that's completely wrong. It focuses on the advocate as some kind of special role, but I think the core problem is preparing for a court case, and I don't think it makes sense to focus on him.

I think an accused should be able to make strategy notes for a court case and be able to have those be secret from the prosecution, and to look up things for these purposes, and, to use Google docs etc. if he so wants.

I also see that some other comments describe that work product has previously been treated as a broader notion with less focus on the advocate and more on preparing for the court case, so I'm far from convinced this has been decided correctly.

[asdfasgasdgasdg]

I understand why you feel that way, but the current policy is not in the direction you are hoping for. The important thing to understand is that all evidence is available by default, that privilege covers the exceptions to that availability. Privilege is construed narrowly, and for now, communications with your advocate, or notes prepared at the request of your advocate, are the sorts of things that are covered. Your own private notes, or chats with your friends about the state of your case, are examples of things that are not covered.

Work product was treated more broadly in one case by a lower magistrate court, but the court making the decision in this case is not bound by that lower court's ruling. What will be interesting is if this ruling gets appealed up to the sups. I doubt the decision will be overruled in any case.

[impossiblefork]

But the actual rule for civil cases (federal rules of civil procedure) is

>(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

So the "by or for another party or its representative" seems more like my thinking than the thinking you're describing.

I think considering other statements, Rakoff is certainly wrong. The documents were prepared as part of pretrial preparations. Non-experts need to be able to use search engines, books, etc. and which books someone was handed for their pretrial preparations, or what lookups they have made can't be the business of their opponents. You have an adversarial system. One party can't have access to the pretrial preparations of the other party, it won't lead to fair trials.