Work product privilege Discovery must be reasonably calculated to lead to the discovery of useful information Obstacles to Discovery -can

use 1) privilege (common law) one is built into rule 12b3 attorney work privilege (Hickman) 2) outside rule 26 scope of relevance -in diversity privilege governed by state law (privilege can be in discovery or evidence) 2 fairly constant discovery privilege in state law 1) attorney work product 2) attorney-client (cant ask what did you tell your attorney) Upjohn Co v. US US 1981 Who is the client for purposes of privilege in corporate context -work-product doctrine -IRS demands payments to gov officials, company says no, protected by attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation -first test was control group where corp not protected just senior management -but the test should be predictable -people told their questionnaires were confidential -privilege extends only to communications, not to facts so its all good -but it should be case by case under FRE 501! -holding- before decision, only person consulting w/ attorney. Now, anyone any one attorney needs to talk to in order to give effective counsel to corporation -for in-house counsel anyone they talk to in a corporation protected dependent on the content of the conversation. Wear two hats- corporate officers and legal advice. So not automatic privilege -inadvertent production of privileged documents may cause a waiver on subject matter -privilege log 26(b)(5)(b) says this wont be waived if (FRE 502): 1) advertent 2) the holder of the protection took reasonable steps to prevent disclosure 3) the holder took prompt and reasonable steps to rectify the error. 6(b)(5)(b) says Have to return and not copy and not use info. Doesnt say if privilege destroyed, just that you cant use it now. But federal evidence rule 502 preserves privilege as long as youre diligent 26(b)(3)(a) work-product privilege says theres a presumptive privilege for all material prepared in anticipation of litigation unless otherwise discoverable and the party shows that it has a substantial need for the material to prepare its cases and cannot, without undue hardship, obtain their substantial equivalent by other means (the only thing not discoverable is mental impression i.e. personal notes with adversarys theorys) -privilege doesnt extend to third parties (i.e. kid cant be there or else privilege bubble pops) -implied waiver if you supply Work-product privilege broader than priviledge because doesnt just include convos Hickman v. Taylor US 1947 work-product privilege

-tug boat did own interviews and D wanted them Wiki- Discovery of written materials obtained or prepared by an adversarys counsel with an eye toward litigation may not be had unless party seeking discovery can establish that relevant and non-privileged facts remain hidden in an attorneys file and where production of those facts is essential to the preparation of ones case. - Federal Rule of Civil Procedure 26, a relatively recent innovation at the time this case was originally filed, granted mandatory discovery of certain documents and materials when requested. (The modern Rule 26(b)(3), protecting trial preparation materials, did not become effective until 1970.) -info from any source not just client -dont want attorneys copying HW, this is adversarial this doesnt make for good litigation. It was in violation of a deep commitment to adversarial justice. AWP not available in PA and other states. In those states, only for mental impressions 26b3- no hardship to just get the interviews himself, available otherwise (different story if people died) -burden on party who wants to invade privacy to establish why - Jackson, J., concurring. Discovery rules may not be formulated in granting special privileges to one class of litigants, plaintiff or defendant, corporate or individual, or otherwise. Discovery is intended to afford fairness in access to information, not to make one's litigation strategy available to one's adversary. While a "battle of wits" results from confidential litigation strategies, litigation without strategy would be far more demeaning to the legal profession and would not work in the interest of justice. -Rule 26e requires duty to update and supplement prior response if the party learns that in some material resect the info disclosed in incomplete or incorrect Procedures to Compel and Block Discovery Objections- unilateral refusals to produce the requested info and they place the burden of seeking judicial intervention on the party seeking discovery because 1) bey