The Work-Product Privilege

In discussing the privilege for work product, it's important first to discuss some general rules about discovery. Parties may obtain initial discovery regarding any non-privileged matter that is relevant to any party's claim, or defense (unless the use would be used solely for impeachment). This includes the nature, description, location, etc., of any documents or other tangible things as well as the identity and location of people who might know of any discoverable matter. 

There are some privileges, however, that will allow a party to withhold otherwise discoverable matter, and one of those privileges is the work-product privilege. Under this privilege, certain immunity from discovery is given to materials created by the attorney for purposes of trial.

This privilege is not necessarily absolute, but it can be. Documents containing subjective thoughts. mental impressions, legal theories, and legal conclusions/opinions of a party's lawyer are given absolute immunity from discovery. In other words, these won't be discoverable by the opposing side or at least it's a near certainty that they won't be. On the other hand, other documents prepared for litigation by either party (for example, a witness statement of an unavailable witness) are still granted immunity, but this immunity is qualified. And qualified immunity can be overcome if the party seeking discovery can show both that there is a substantial need for the material and that it would be an undue hardship to obtain this material through other means.

Qualified immunity requires a balance and there are factors to guide that balance. To determine whether it would be an undue hardship to require a party to obtain the material by other means the court will determine the cost of obtaining the material through other means other than by discovery of the material. The court will also consider the finances of the party seeking discovery. And finally, in those specific instances in which the material sought is a transcript of an opposing witness's statement, the court will consider the hostility of the witness to the party seeking discovery of that statement.