Working Copy
An informal set of exhibits used by attorneys during depositions or trial, separate from the official court copy.
What You Need to Know
Working copies are personal document sets used by attorneys for reference during depositions, hearings, and trial, distinct from official court exhibits. These copies can be annotated, highlighted, tabbed with post-it notes, and marked up with trial strategy without affecting the clean copies submitted to the court or shown to the jury. Typical working copy locations include counsel table binders, deposition binders, or digital tablets with annotation software. Working copies are considered attorney work product and are not discoverable or admissible—they remain confidential strategy materials. Many attorneys maintain multiple working copy sets: one for counsel table, one for witness examination, and one for co-counsel.
Legal References
- Federal Rules of Civil Procedure 26(b)(3) - Work product protection
Relevant Practice Areas
Frequently Asked Questions
Can opposing counsel see my working copy exhibits?
No, working copies are attorney work product protected from discovery under Federal Rules of Civil Procedure 26(b)(3). Your annotations, highlights, post-it notes, and tabs reflect mental impressions, trial strategy, and legal theories—all protected work product. However, the underlying documents (without annotations) are discoverable if relevant. If you accidentally show or reference your working copy during deposition or trial, you may waive work product protection for those specific annotations. Best practice: keep working copies face-down at counsel table and use clean copies when showing documents to witnesses or opposing counsel.
Should I bring working copies to depositions and trial?
Yes, working copies are essential for effective examination. Benefits include: (1) quick reference to key documents without flipping through clean exhibit sets, (2) tabs marking critical pages for cross-examination, (3) notes showing questions to ask about each document, (4) highlighting key testimony excerpts from transcripts, and (5) annotations showing document relationships or timeline. Organize working copies by: witness (all exhibits for direct/cross of each witness), chronology (timeline order), or topic (liability, damages, causation). Use color-coded tabs—blue for plaintiff exhibits, red for defendant exhibits, yellow for demonstratives. Keep working copies separate from clean exhibit sets to avoid accidentally marking official exhibits.
What is the difference between working copies and trial binders?
Working copies are informal reference materials with annotations and strategy notes for attorney use only. Trial binders are formal, organized sets of exhibits, pleadings, and authorities that may be shared with the court, opposing counsel, or co-counsel—they contain clean, unmarked documents. Most attorneys maintain both: (1) one or more trial binders with pristine exhibits, witness lists, jury instructions, and key pleadings organized for quick access, and (2) working copies of frequently-referenced documents with personal notes and tabs. Trial binders are often provided to co-counsel and may be requested by the judge. Working copies remain private at counsel table and never leave the attorney's possession.
When It's Used
Allows annotations and notes without marking up the official record
Example
"A personal binder with post-it notes and highlighting that stays at counsel table."
Related Terms
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