Multistate Professional Responsibility Exam Practice Question
An attorney gathered written statements from witnesses after an incident. The attorney claims protection for these statements because they were prepared in anticipation of a lawsuit. An opponent now seeks production, asserting no alternative source exists for the same factual data. Which statement best describes whether these documents can be withheld or produced?
They are never discoverable, because the opponent has the same right to speak to the witnesses.
They are not discoverable because they were created by counsel
They must be disclosed if they were used to prepare a witness for testimony
They may be produced if the requesting party shows a need for the factual content and difficulty getting it another way, but the attorney’s impressions remain protected
The best answer recognizes that materials prepared by an attorney for potential litigation are protected from discovery unless the requesting party shows a strong need for the factual content and hardship in obtaining the same information elsewhere. Even when disclosure is ordered, subjective thoughts or opinions are generally shielded. One incorrect choice suggests blanket production for witness preparation, which is not a standard for disclosure. Another choice implies that materials prepared by counsel are automatically barred from production, which overlooks how factual components can be discovered if need is demonstrated.
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What does it mean for a document to be protected in anticipation of litigation?
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What is the work product doctrine?
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What does it mean to show a 'strong need for the factual content' in a discovery request?