“Discovery” is the process by which parties (and their attorneys) narrow the issues between them at trial by allowing them to investigate and determine the facts that are not in dispute. There are a number of discovery methods available to parties, and thus parties can obtain information through a wide variety of ways.
Work product is material in either written or oral form that was prepared by or for an attorney in preparation for trial or litigation, regardless of whether the litigation is in process or has yet to commence. The term “work product” can also be used to describe the material produced by a party’s communications and/or investigation regarding the subject matter of a particular suit. However, this term is only used to reference those investigations or communications made to assist in the defense or prosecution of a pending suit, or in reasonable anticipation of upcoming litigation.
Work product is generally exempt from the discovery process that occurs prior to and during the course of a trial. The “work-product rule” is a doctrine of the Federal Rules of Civil Procedure, which provides for the qualified immunity of an attorney’s ‘work product’ from discovery or other judicially compelled disclosure at trial.
Though the ‘work-product rule’ was originated in Hickman v. Taylor, 329 U.S. 495 (1947), it has now been codified in the Federal Rules of Civil Procedure (FRCP) in Rule 26(b)(3). The doctrine developed in Hickman applied only to items prepared by attorneys; however, the rule (as codified today) has been extended to things prepared by other individuals and representatives.
FRCP 26(b) provides a list of proceedings that are exempt from disclosure for the purposes of discovery. However, the protection afforded by FRCP 26(b)(3) is limited in its scope to otherwise discoverable trial preparation and work product materials. In other words, this qualifying language provides that attorney work product can become subject to discovery when the information is not reasonably available from any other source and when the party moving to remove this immunity has a substantial and legitimate need for that information.
Although attorney work product is a qualified immunity for the purposes of discovery, it is important to note that the mental impressions, opinions, and legal evaluations of a lawyer is afforded an absolute privilege, and their disclosure can never be compelled at trial.