CODIFYING COMMON LAW 583
doctrine is a protection, not a privilege: a court will order
discovery if a litigant asserts a “substantial need” for the
materials,^27 although “mental impressions, conclusions, opinions,
or legal theories of a party’s attorney or other representative”
are always protected.^28
These “attorney-based protections,” however, do not extend
to more general self-critical materials.^29 Most courts have
interpreted the “anticipation of litigation” standard of the work-
product doctrine fairly narrowly, protecting only work product
prepared by an attorney in response to an actual event that could
reasonably give rise to litigation.^30 As one commentator noted,
many self-critical procedures and studies are designed to prevent
litigation and thus would “not possess the requisite tie to
litigation to invoke work-product protection.”^31 The attorney-
client privilege, on the other hand, only protects confidential
communications between an attorney and her client.^32
Information acquired by an attorney from other sources,
including third parties, is not protected, however “confidential”
it may seem in the colloquial sense of the term.^33 In sum, neither
20; see also Hickman, 329 U.S. at 516 (“Discovery was hardly intended to
enable a learned profession to perform its functions either without wits or on
wits borrowed from the adversary.”).
(^27) FED. R. CIV. P. 26(b)(3)(A) provides that the discovering party can
overcome the protection if it “shows that it has substantial need for the
materials to prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.”
(^28) FED. R. CIV. P. 26 (b)(3)(B).
(^29) Patricia L. Andel, Inapplicability of the Self-Critical Analysis Privilege
to the Drug and Medical Device Industry, 34 SAN DIEGO L. REV. 93, 98–103
(1997).
(^30) See FED. R. CIV. P. 26 advisory committee’s note (“Materials
assembled in the ordinary course of business, or pursuant to public
requirements unrelated to litigation, or for other nonlitigation purposes are
not under the qualified immunity provided by this subdivision.”); see also
Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982)
(“The fact that a defendant anticipates the contingency of litigation resulting
from an accident or an event does not automatically qualify an ‘in house’
report as work product.”).
(^31) Andel, supra note 29, at 103.
(^32) Id. at 99.
(^33) Id. at 100; see also FARRELL, supra note 19, § 5-101 (quoting 7