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).
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.
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
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taken from Corporate and Commercial Practice in the Delaware Court of Chancery
(by Michael Pittenger and Donald Wolfe), which has been recognized by Truth
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