Defendant’s attorney spent lots of time on discovery (interrogs, depositions, interviews, etc.). Plaintiff filed interrogatories asking for all information that the defendant’s lawyer had gathered from the witnesses. Defendant’s attorney refused to answer because he said it was privileged matter obtained in preparation for litigation. He said it would involve turning over to the other side not only his files, but his thoughts on the case. Attorney/client privilege doesn’t apply to work product because it involves communication with third parties. A/C privilege only applies between the attorney and the client. Rule 26(b)(3) didn’t exist at the time of this case. This case was decided on policy reasons, and led to the formulation of Rule 26(b)(3). Court in this case said that the defendant’s attorney did not have to answer the question. Plaintiff’s lawyer never made an assertion of necessity here. Under Rule 26(b)(3), an assertion of necessity is required in order to overcome the work product privilege. Court considers that discovery goes both ways, and plaintiff’s atty could have gotten all the information on his own.
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