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Work product doctrine, Hickman v. Taylor, Rule 26(b)(3)


Civil Procedure | Evidence


Work product is the legal doctrine that central casting would send over. First, it boasts profundities, arising as it does from the colliding thrusts of our discovery and trial processes and from conflicting currents in our modified adversary system. Second, it will surface frequently, because the protected materials are commonly created by each side but uncommonly useful to the opponent. Third, it has generated a small mountain of lower-court case law, with the foothills forming a labyrinth of rules and wrinkles. In short, work product has for a couple of generations dramatically bewitched academics, bothered practitioners, and bewildered students.

Significant intellectual challenge and truly compelling importance compose the formula for disorder. One of the contributing causes of this disorder is the questionable legal process that produced the work-product doctrine. In the forties, the Supreme Court passed up the rulemaking route for the pointillist case method, kicking off the process of clarification with the great case of Hickman v. Taylor. In 1970, from the welter of conflicting decisions the rulemakers attempted to codify workable sensibleness, adopting the poorly executed rule 26(b)(3). Hickman soundly divided the subject into "ordinary" and "opinion" work product. Rule 26(b)(3) surprisingly, irrelevantly, and apparently inadvertently divided the same world into "tangible" and "intangible" work product.

The prevailing scheme induces totally misguided decisions. My thesis, in summary, is that without divining at the threshold the scheme here suggested, commentators inevitably misdraw the map of the doctrine.

Publication Citation

Published in: Cornell Law Review, vol. 68, no. 6 (August 1983).