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Free Download: The Work Product Doctrine in the Delaware Court of Chancery

In Hickman v. Taylor, the United States Supreme Court recognized a qualified immunity from discovery of a lawyer's work product prepared in connection with litigation. The Delaware Court of Chancery has embraced the work product doctrine as enunciated by the Supreme Court in Hickman, and the doctrine is embodied in Delaware Chancery Court Rule 26(b)(3).

The rule states in relevant part that

a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)( I) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the Court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

The doctrine, as codified in Rule 26(b)(3), generally protects materials such as "memoranda, recorded mental impressions, synopses of witness statements, drafts of documents, etc., prepared by an attorney 'with an eye to litigation,' unless substantial good cause can be shown for its production." The party asserting a claim of work product immunity has the burden of proof to establish that the protection applies for a specific document. The rule exists to protect "the privacy of lawyers in their work and [encourages] . . . freedom . . . from interference in the task of preparing their clients' cases for trial."


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This excerpt was taken from Corporate and Commercial Practice in the Delaware Court of Chancery (by Michael Pittenger and Donald Wolfe), which has been recognized by Truth on the Market as one of the top ten corporate law works for the practitioner. Subscribers to may access the treatise online. Non-subscribers may purchase the treatise from the LexisNexis Store.

Because it is the corporate domicile of choice in the United States, Delaware produces and implements the substantive laws governing internal affairs for most of our nation's corporations - large and small. As a result, most battles concerning the application of those laws are waged in Delaware courts. In Corporate and Commercial Practice in the Delaware Court of Chancery, you'll profit from the singular insight and firsthand experience of two of the court's leading practitioners. You'll quickly find out why the Court of Chancery is to corporate litigation what the Delaware General Corporation Law is to the nation's corporate community. And most important, you'll learn about numerous topics never before explored in such a comprehensive manner.