Are Auditor Work-Papers Discoverable? The D.C. Circuit Joins the Fray


In the United States, the “work-product” doctrine ensures that attorneys can effectively prepare for litigation and trial by protecting their notes, preparatory materials, and internal analyses from discovery. The Supreme Court recognized long-ago that giving opposing counsel access to such work product would cause serious problems:

[M]uch of what is now put down in writing would remain unwritten. An attorney?s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the client and the cause of justice would be poorly served.

Hickman v. Taylor, 329 U.S. 495, 511 (1947). At the federal level, the work-product doctrine was subsequently partially codified in Federal Rule of Civil Procedure 26(b)(3), which states that, ordinarily, “a party may not discover documents and tangible things that are prepared in anticipation of litigation” by the opposing party or its representative.

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