Also known as: trial preparation material · trial-preparation materials · work product · attorney work product
Written by attorneys · grounded in primary & secondary sources — see below
Materials prepared by or for an attorney in anticipation of litigation or for trial, including memoranda, interview summaries, and strategy notes. Such materials receive qualified protection from discovery under the work product doctrine and are not subject to disclosure absent a showing of substantial need and undue hardship.
Tiana Tan's counsel interviewed several plant employees after a product defect claim arose and prepared detailed memoranda summarizing their statements. When opposing counsel sought the memoranda during discovery, the court denied production because the materials were created in anticipation of litigation and no showing of substantial need was made.
Tyler Taylor, an engineer at Trinity Pharmaceuticals, sent notes to in-house counsel at the direction of his supervisor to help prepare a response to an anticipated regulatory inquiry. The company withheld the notes from discovery, and the court upheld protection because the communications were made for the purpose of obtaining legal advice in anticipation of litigation.
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Taliah Tang sued her former law firm for overbilling in a contract dispute. The firm produced its internal work product memos analyzing Tang's discovery responses to defend against the malpractice allegations, and the court permitted use of the materials under the self-defense exception.
Tracy Torres's counsel compiled annotated notes evaluating settlement ranges and jury appeal after a breach of contract claim was filed. When the opposing party sought the notes, the court denied access because the materials were prepared in anticipation of litigation and no substantial need was demonstrated.
Tara Tran's litigation team prepared internal memoranda assessing scientific test results in anticipation of a products liability trial. Opposing counsel moved to compel production of the memoranda, but the court refused because the materials constituted trial preparation work product created for litigation purposes.
A party must demonstrate substantial need for the materials and inability to obtain their substantial equivalent without undue hardship. The protection is qualified rather than absolute.
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Yes. Materials prepared in anticipation of litigation retain protection even if they also assist in making a business decision expected to result in litigation.
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No. The self-defense exception permits the firm to use necessary client communications and work product to defend against allegations such as overbilling or inadequate representation.
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Rule 26(b)(3) provides qualified protection for trial preparation materials upon a showing of substantial need, whereas attorney-client privilege offers stronger, absolute protection absent waiver or exception.
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…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…