The Work Product Doctrine in the State Courts

When the modem Federal Rules of Civil Procedure were adopted in 1938, considerable doubt and controversy arose concerning the broad provisions for deposition and discovery. That controversy can be fairly described as a conflict both of emotion and of basic philosophy. Many lawyers engaged in the daily maneuvering of the adversary process naturally tended to defend a system which put a high premium on their individual abilities. Others were able to stand back and look at the trial practice of the day with some concern for basic incongruities. Too often, they felt, the obtaining of truth in fair trials was frustrated by surprise and incomplete presentation of facts. Furthermore, many cases were tried which would have been settled had the parties had more complete knowledge of the facts before they began. Broad discovery procedures aimed at full disclosure of facts before trial were thought necessary to encourage settlements and to promote fairer, more efficient trials. Very little broadside criticism of extensive pretrial discovery now appears, and one might fairly assume that the benefits it was predicted would accompany broad discovery have been realized at least in substantial part. This assumption as to general success is further buttressed by the fact that, since 1938, discovery procedures identical with or similar to those of the Federal Rules have been adopted in at least thirty states. It is clear that this number is growing and that pressure will mount in the remaining states for increased discovery opportunities. The arguments for and against the basic decision to broaden discovery have been ably presented elsewhere. This comment will deal solely with problems in the important area which has come to be known as “work product” doctrine. The experience of the federal courts indicates that any state which seeks to broaden its discovery rules must eventually face up to the recurring problems in this area.