Under federal practice, are documents prepared in anticipation of litigation privileged, and what is the exception?

Under federal practice, are documents prepared in anticipation of litigation privileged, and what is the exception?

• A. They are always discoverable
• B. They are privileged unless substantial need or undue hardship
• C. They are never privileged
• D. They are privileged unless the opposing party demonstrates no need

Answer: (B)

Documents prepared in anticipation of litigation fall under the work product doctrine, so they are privileged and not normally discoverable. The exception is narrow: the party seeking those materials can obtain them only if they show a substantial need for the materials in preparing their case and that they are unable, without undue hardship, to obtain the substantial equivalent by other means. This balances protecting litigation strategy with allowing access when there is an extreme need.

Documents prepared in anticipation of litigation fall under the work product doctrine, so they are privileged and not normally discoverable. The exception is narrow: the party seeking those materials can obtain them only if they show a substantial need for the materials in preparing their case and that they are unable, without undue hardship, to obtain the substantial equivalent by other means. This balances protecting litigation strategy with allowing access when there is an extreme need.