Please explain the difference between the work product rule and the attorney-opinion work product rule.
What will be an ideal response?
Civil Procedure Rule 26(B) concerns what is discoverable in litigation. It allows the parties
to obtain from each other that which relates to the litigation and is not privileged, including
that which, although inadmissible at trial, could reasonably lead to admissible evidence.
Rule 26(B)(3) concerns that which is privileged, and it sets up an arrangement whereby one
party may obtain from the other party information that would otherwise be protected by the
attorney-client privilege. This is known as the work product rule. The first part of the work
product rule allows a party to obtain privileged information if two prerequisites are met: (1)
The side desiring the tangible information demonstrates a substantial need of it and (2) the
side desiring the tangible information demonstrates that they would be unable to obtain the
same information on their own without incurring undue hardship. The second part of the
work product rule, sometimes referred to as the attorney-opinion work product rule, provides
an absolute protection, which is an “exception to the exception.” That part of 26(B)(3)
absolutely protects from disclosure any otherwise discoverable client information if that
which is sought would reveal the attorney’s legal strategies or opinions about the case,
including the opinions or legal theories of the attorney’s. Therefore, an attorney can keep
confidential any information that is the representation of the attorney’s legal judgment and
skill. Therefore, notes taken by the attorney after interviewing the client, for instance, would
not be discoverable because of the attorney-opinion part of the work product rule.
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