MBE Rules · Evidence
Attorney work-product doctrine
Hickman v. Taylor; FRCP 26(b)(3)
The rule
Documents and tangible things prepared in anticipation of litigation or for trial by or for a party or its representative are protected from discovery. Ordinary (fact) work product is discoverable only on a showing of substantial need and inability to obtain the substantial equivalent without undue hardship; opinion work product (mental impressions, conclusions, opinions, legal theories) receives nearly absolute protection.
In plain English
Distinct from attorney-client privilege: work product protects the lawyer's litigation preparation (interview notes, draft memos, strategy documents), not confidential client communications. The bar exam frequently pits the two doctrines against each other.
The trap
Work product is a qualified protection that can be overcome; attorney-client privilege is absolute (subject to exceptions) — do not conflate the two.
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