The Work Product Doctrine: Why Have an Ordinary Course of Business Exception?

Friday, January 1st, 1988 at 12:00 am by Thomas Wilson
Thomas Wilson, The Work Product Doctrine: Why Have an Ordinary Course of Business Exception?, 1988 Colum. Bus. L. Rev. 587

The work product immunity doctrine codified in Federal Rule of Civil Procedure 26(b)(3) was developed to provide attorneys with a “zone of privacy” in which to prepare for litigation. Under this doctrine, litigants are allowed immunity from discovery of tangible materials prepared “in anticipation of litigation.” In cases where attorneys represent corporate clients, courts have too rigorously applied the in anticipation of litigation test by determining that documents prepared in the ordinary course of business are not afforded work product immunity. This judicial declaration penalizes businesses that prudently investigate after incidents which may cause future liability. Businesses fear that their efforts will be wasted or that their advantage will be lost through discovery. However, if they do not investigate, they may not be adequately prepared for trial.

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