MBE Rules · Civil Procedure
Work product doctrine
FRCP 26(b)(3)
The rule
Documents and tangible things prepared in anticipation of litigation by a party or its representative are protected. Discoverable only on showing substantial need AND inability to obtain equivalent without undue hardship. Opinion work product (mental impressions, conclusions) gets near-absolute protection.
In plain English
If a party prepares documents for an upcoming lawsuit, those documents are usually protected from being shared with the other side unless the other side really needs them and can't get similar info elsewhere.
Worked example
The defendant prepares a report about a car accident for their lawyer. The plaintiff wants it, but must show they can't get similar info from other sources and really need it. If the report includes the lawyer's thoughts, it's even harder to get.
Memory hook
Work Product: Protecting Prep. Docs for litigation stay secret unless need is great and hardship is heavy.
The trap
Students think: Any work product can be discovered with need. Wrong, because opinion work product is nearly untouchable. The actual test is substantial need and undue hardship only for factual work product.
How examiners test it
The MBE loves: party requests documents prepared by attorney. Trap: assuming all can be disclosed with need. Key: differentiate between factual work product (need + hardship) and opinion work product (almost never disclosed).
Drill this rule until it can't fail you.
Vrenberg generates unlimited questions on this exact rule, tracks your mastery of it, and brings it back until it sticks.