As an experienced trial lawyer explains, the essence of the work product doctrine is the ability to have protection for documents and other tangible materials that are composed in anticipation of litigation. Under Federal Rule of Civil Procedure 26, the Work Product Doctrine reads as follows: “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including other party’s attorney, consultant, surety, indemnitor, insure, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if they are otherwise discoverable under Rule 26(b)(1) and if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Essentially, materials generated with litigation as the focus meets the requirement of work product doctrine. The rule does impose an exception, which is that if the party that seeks the tangible material must show that there is a substantial need for it, so much so, that without it that party would be unduly burdened in preparation of their case without any alternatives.
Federal Rule of Civil Procedure 26(b) discusses intangible materials in relation to the work product doctrine. The rule reads as follows: “If the court orders discovery of those materials, it must protect against disclosure of the mental impression, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Thus, an attorney’s legal procedures and mental processes focused on litigation are completely barred from being discoverable. This portion of the work product doctrine essentially creates complete and absolute protection that cannot be discovered. If a document, that would be considered discoverable, contains intangible materials that the rule specifically bars from discovery under the work product doctrine, the court will order that the non-discoverable portion of the work product be redacted from the discoverable document.
Thanks to Eglet Adams, for their insight on work product doctrine.