The Work Product Doctrine

Question 1

What is the Work Product Doctrine?

Answer 1

Protects material prepared by attorneys (or their agents) in anticipation of litigation from being disclosed to opposing parties

Question 2

What is protected?

Answer 2

Documents and tangible things prepared by attorneys or party

Question 3

What is Ordinary Work Product?

Answer 3

1. Factual information gathered for litigation
2. May be discoverable in a civil case based on “substantial need” and the inability to obtain the substantial equivalent by other means without “undue hardship”

Question 4

What is Opinion Work Product?

Answer 4

1. Communications that include Attorney’s Mental Impressions, legal theories or strategies
2. Nearly Absolute Immunity: except for rare circumstances

Question 5

Are Underlying Facts Protected by Work Product Doctrine?

Answer 5

NO: same as ACP

Question 6

Who has the burden of proof in receiving Work Product ?

Answer 6

The Party Seeking Discovery of the document

Question 7

What does the Party seeking discovery need to establish to get the work product? (3)

Answer 7

1. Substantial need to prepare the party’s case
2. The party is unable without undue hardship to obtain the substantial equivalent of the materials by other means AND
3. The Material is relevant