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How Courts Apply The Work Product Doctrine In Pennsylvania, Maryland & D.C Litigation Cases

During the discovery phase of a case, often controversy arises regarding which materials are subject to disclosure between the plaintiff and defendant. The “work product doctrine” is a rule regarding what material in a case may be subject to discovery. Most evidence from both parties must generally be disclosed in the early phases of a proceeding. The work product doctrine shields material from disclosure when it is prepared by an attorney for use in pending litigation. The federal rule allows parties to compel disclosure under certain circumstances, such as if the material is “substantially necessary”, or if it would cause “unwarranted hardship” as summarized in Fed. R. Civ. Pro. 26(b)(3). Another related doctrine is one referred to as “good cause” (Rule 45). Similar to the work product doctrine, good cause requires a party to justify their reason for needing access to the material. States originally composed their individual work product laws using elements of the federal framework; however, many interpret things in other ways and use different language. Courts may determine that certain materials do not actually stem from the work of an attorney, or that a party failed to prove good cause when excluding materials from discovery.

Pennsylvania’s Interpretation of the Doctrine

The way that Pennsylvania interprets the work product doctrine has some differences compared to the Federal Rules for Discovery. A major need does not necessarily have to exist in order to access the materials of the opposite party. The law states that parties may gain evidence materials even if it was done in preparation for litigation by an attorney, representative, agent etc. The state makes a distinction between a party’s lawyer and their “representatives”. Discovery is prohibited for the mental impressions, opinion, notes, legal research or theory of an attorney or representative. Mental impressions are thoughts or ideas that develop based on experience.

Interpretation of Work Product Doctrine in Maryland

Maryland allows wider ranging protection of materials organized for litigation by an attorney or representative. Under Md 2-402, discovery is possible for documentation, electronic data, and other physical information for a trial if the requesting party has a significant need for it to prepare for litigation. In addition, the party must not be able to otherwise access the information without enduring hardship. Similarly to Pennsylvania, data such as opinion, theory and mental impressions are not subject to discovery. There is no clearly defined time-frame that discovery materials must be produced within; rather, it should be completed in a “reasonable” amount of time.

The District of Columbia’s Interpretation

In D.C., their courts offer significant protection for materials created when anticipating a case under the work product principle. Parties seeking discovery of such materials must exhibit a significant need for the material and be unable to reasonably obtain something equivalent elsewhere. Opinion-based work products are not subject to discovery unless there is “extreme” necessity. When materials are composed of factual information and opinions together, the court with apply standards individually to the data.

About the Author

Charles GilmanCharles Gilman
Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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