The Uncertain Foundation of Work Product
43 Pages Posted: 25 Sep 2020
Date Written: Fall 2017
Work product is heavily litigated, extensively studied, and sorely misunderstood. Most blissfully accept it as a combination of codified rules and the seminal case of Hickman v. Taylor. This view settles for a superficial understanding that neither recognizes nor questions underlining assumptions. The codified rules are legislative mandates, Hickman is Supreme Court common law, and they define the doctrine differently. To understand its proper scope of work product, we must know the basis of Hickman v. Taylor, whether it can coexist with codified rules, and what happens when they conflict.
This Article takes the novel view that work product is not one doctrine, but two. One branch consists of rules and statutes. The other branch is Hickman and its progeny. This Article concludes Hickman is the product of a well-recognized, if profoundly mysterious, strain in federal jurisprudence known as the inherent powers of courts. Even after the later adoption of codified work product rules, the Hickman branch survives but only in piecemeal fashion. When these branches conflict, the separation of powers requires that the rules and statutes preempt Hickman.
To defend this claim, this Article takes us on a journey through the unexplored and striking origins of work product. From its unusual birth, to how courts struggled to make sense of it, to failed drafting attempts, an undercurrent emerges: there is an ongoing struggle between federal courts’ power to step in without any guidance to protect a policy of intrinsic importance to the justice system, and the need for deference to rules and statutes with a democratic pedigree. Ultimately, the near plenary power of the legislature to control federal courts resolves the conflict. This Article concludes Hickman is good law but is not absolute, Congress has more control over the attorney-client relationship than previously thought, and more material is discoverable than most attorneys or courts recognize.
Keywords: work product, separation of powers, inherent authority, constitutional law, civil procedure
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