Also known as: materials prepared for litigation · work product
Written by attorneys · grounded in primary & secondary sources — see below
Materials prepared by an attorney or representative in anticipation of litigation. Such materials receive protection from discovery under the work-product doctrine unless the opposing party demonstrates substantial need and inability to obtain equivalent information without undue hardship.
Maya Malik's counsel interviewed three employees after a product defect claim arose and compiled detailed memos summarizing their accounts. The opposing party sought the memos during discovery. The court denied production because the memos reflected counsel's mental impressions prepared in anticipation of litigation and the requesting party made no showing of necessity.
Matrix Technologies directed mid-level engineers to submit accident data to in-house counsel for legal review. The resulting memos were stored in a shared system. When a plaintiff sought the memos, the court upheld work-product protection because the materials were prepared in anticipation of litigation and the plaintiff failed to show substantial need.
Select any source to read its text and confirm it supports the definition.
Maria Morales sued her former firm alleging overbilling. The firm sought to use its own interview notes and client discovery responses to defend the malpractice claim. The court permitted limited disclosure of the work-product materials because the client had placed the representation at issue.
Momentum Capital's outside counsel prepared annotated strategy notes after a securities claim was filed. The notes evaluated jury appeal and recommended settlement ranges. The court refused production because the notes constituted opinion work product created in anticipation of litigation.
Mercury Industries retained experts to evaluate causation issues in a product liability suit. Counsel compiled summaries of those consultations for trial preparation. The court denied discovery of the summaries because they were prepared in anticipation of litigation and the requesting party showed no compelling need.
A party seeking ordinary work product must demonstrate substantial need and inability to obtain equivalent information without undue hardship. Opinion work product receives heightened protection and requires a stronger showing of necessity.
Supporting sources
Yes. Materials prepared by a party's representative, such as an adjuster or investigator, in anticipation of litigation qualify for protection if they meet the anticipation requirement.
Supporting sources
Inadvertent production does not waive protection if the holder took reasonable steps to prevent disclosure and promptly rectified the error under Federal Rule of Evidence 502(b).
Supporting sources
Yes. When a client alleges malpractice or fee disputes, the firm may use necessary client communications and work product to defend itself because the client has placed the representation at issue.
Supporting sources
…testimony reflects "scientific knowledge," whether their findings are "derived by the scientific method," and whether their work product amounts to "good science." --- U.S. at ----, ----, 113 S.Ct. at 2795, 2797. Second, we must ensure that the proposed expert testimony is "relevant to the task at hand," id. at ----, 113…