Rethinking Work Product

Abstract:     
This article analyzes the traditional and law & economics explanations purporting to justify the exclusion of work product materials from discovery. It argues that none of these arguments are well founded and that, instead, the privilege increases costs and decreases the system's ability to produce appropriate settlements and accurate fact finding. To the extent that the privilege serves legitimate ends, narrower and more narrowly tailored protections would provide the necessary protection.

Number of Pages in PDF File: 70

Keywords: discovery, work product, privilege, deposition, interrogatory, federal rules

JEL Classification: K41

Accepted Paper Series