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The Scope of Discovery

A variety of other privileges are also recognized by the courts. For example, many states recognize a privilege for communications between priest and penitent, between doctor and patient, between psychotherapist and patient, and between husband and wife. In recent years, more exotic privileges have been claimed and sometimes recognized, such as a news reporter’s privilege to keep sources confidential, a scholar’s privilege to protect confidential sources, a teacher-pupil privilege, and others. See, generally, McCormick on Evidence (6th ed. 2006), §76.2, 219. Such privileges may be created by state or federal common law or statute or as in the case of the privilege against self-incrimination in the U.S. Constitution. The important point for our purposes is not to analyze privileges in detail, but to recognize that courts may choose to protect information despite its relevance, and that where they do, the information need not be disclosed in discovery.


A second major exception to the broad scope of discovery under Rule 26(b)(1) is the so-called work product privilege, which bars production of certain materials developed in anticipation of litigation.

It is hard for students, who generally have not worked in a law office, to understand what the phrase “work product” means. It refers to the many types of materials in a lawyer’s file (and to some extent, in the lawyer’s mind) that are created in the course of investigating a case and preparing to try it. Examples include notes on witness interviews, recordings of witness interviews, memoranda on factual or legal issues in the case, trial notebooks, lists of exhibits, indexes of depositions, e-mails among co-counsel about strategy or litigation planning, and the myriad other documents that lawyers create as they develop cases, learn facts, and investigate legal issues. Naturally, such documents are relevant to the case and therefore within the presumptive scope of Rule 26(b)(1). Yet revealing them to opposing counsel raises difficult issues, and has led to qualified protection for such documents under the “work product doctrine.”

Protection for work product materials was first recognized in Hickman v. Taylor, 329 U.S. 495 (1947), in which plaintiff’s counsel in a wrongful death case sought discovery of defense counsel’s notes of interviews with various witnesses to the tugboat sinking that caused the deaths. He also requested, through interrogatories, the substance of other interviews that Fortenbaugh (the defendant’s lawyer)[3] had conducted but had not written down. In other words, he wanted Fortenbaugh to write out his memory of the interviews in response to the interrogatories.

[3]. I receive a good many interesting e-mails from law students (frequently pointing out my mistakes—keep ’em coming!). Here’s one pertinent to the Hickman case:
I was wondering why, in the text, you mention the defendant’s lawyer by name, Fortenbaugh, but only refer to plaintiff’s counsel as such, “plaintiff’s counsel.” The reason I ask is because the plaintiff’s counsel for this case happened to be my great grandfather, Abraham E. Freedman. This is just one of his over 100 appearances before the U.S. Supreme Court and he also sat on the committee which drafted the rules after this case. From what my family has said Abe most valued the Hickman case more than any other he did in his career. . . . My grandmother still has his original copies of what was turned over to the court when he tried this case.
J. M., Widener University School of Law

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