The Litigator's Dilemma: Waiver of Core Work Product Used in Trial Preparation

(Excerpt) This Article focuses on the protection from disclosure accorded to opinion or core work product when it is used, as intended, in pretrial preparation of cases. It is this use of opinion or core work product that brings the litigator to a dilemma. There are no explicit or "bright line" guides to advise the litigator when the use of such work product to prepare witnesses or the case will result in compelled disclosure of the materials to one's adversary. Thus, the litigator must either forego use of such materials to prepare his case, even if it adversely affects that preparation, or risk disclosure of his core work product.

Examination of this dilemma only begins with a reading of FRCP 26(b)(3). In considering the question of whether, and if so, to what extent, opinion or core work product should be protected from disclosure, we hardly start with a blank slate. Instead we can choose from the array of approaches and rules argued by litigants and adopted by different courts.