Also known as:ordinary work-product · work product doctrine · fact work product
Written by attorneys · grounded in primary & secondary sources — see below
A category of attorney work product consisting of factual materials prepared in anticipation of litigation that do not contain an attorney's mental impressions, conclusions, opinions, or legal theories. Such materials receive qualified protection and are discoverable only upon a showing of substantial need and inability to obtain the substantial equivalent without undue hardship.
Sources & Authorities
How it applies
Common Examples
2
Witness Interview Summaries
Odyssey Logistics faces a contract dispute with a supplier. Its outside counsel directs a paralegal to interview warehouse employees about delivery delays and to prepare written summaries of those conversations. The supplier later seeks the summaries in discovery but makes no showing of substantial need or undue hardship. The summaries qualify as ordinary work product because they contain only factual accounts prepared in anticipation of litigation, so the court denies production.
Internal Incident Notes
Orion Technologies receives a demand letter alleging product defects. Its in-house counsel directs the quality-control team to compile factual notes from employee observations of the manufacturing process. A plaintiff later requests the notes in discovery without demonstrating substantial need or undue hardship. The notes constitute ordinary work product prepared in anticipation of litigation, so the court refuses to compel their production.
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Test Yourself
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Practice Questions5
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Common questions
Frequently Asked
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What distinguishes ordinary work product from opinion work product?+
Ordinary work product consists of factual materials such as raw information or witness statements gathered in anticipation of litigation. Opinion work product contains an attorney's mental impressions, conclusions, opinions, or legal theories and receives near-absolute protection.
Supporting sources
When can ordinary work product be discovered?+
A party may obtain ordinary work product only by showing both that the materials are within the general scope of discovery and that the party has substantial need for them to prepare its case and cannot obtain their substantial equivalent without undue hardship.
Supporting sources
Does the fact that ordinary work product contains only facts defeat protection?+
No. Even purely factual materials receive work-product protection when prepared in anticipation of litigation. The requesting party must still satisfy the substantial-need and undue-hardship requirements before a court will order production.
Supporting sources
Are documents prepared by non-attorneys eligible for ordinary work-product protection?+
Yes. Materials prepared by a party's employees, risk-management staff, or other representatives at counsel's direction in anticipation of litigation qualify as ordinary work product even when they contain only factual information.
Supporting sources
Professional ResponsibilityClient confidentiality · Work-product doctrineMPREFoundational