Under federal procedure, are documents prepared in anticipation of litigation discoverable?

Under federal procedure, are documents prepared in anticipation of litigation discoverable?

• A. Yes, always
• B. No, never
• C. No, unless substantial need or undue hardship
• D. Only with consent of the opposing party

Answer: (C)

Documents prepared in anticipation of litigation are protected by the work-product doctrine, so they are not discoverable in federal court in ordinary circumstances. The protection is there to preserve the attorney’s mental impressions, strategies, and legal theories as counsel prepares a case. There is a narrow exception: a party may obtain these materials if they show substantial need for the materials and that they cannot obtain the substantial equivalent by other means without undue hardship. This means discovery of such documents is allowed only when the requesting party can demonstrate both elements, and otherwise they remain protected.

Documents prepared in anticipation of litigation are protected by the work-product doctrine, so they are not discoverable in federal court in ordinary circumstances. The protection is there to preserve the attorney’s mental impressions, strategies, and legal theories as counsel prepares a case. There is a narrow exception: a party may obtain these materials if they show substantial need for the materials and that they cannot obtain the substantial equivalent by other means without undue hardship. This means discovery of such documents is allowed only when the requesting party can demonstrate both elements, and otherwise they remain protected.