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Over the course of the past decade, the federal courts, in a series of cases, have been faced with the question of whether to allow discovery of materials prepared by an attorney in preparation for prior litigation. While these materials-denoted attorney's work product1 -are, under the doctrine of Hickman v. Taylor,2 protected from discovery in the case for which they are prepared, the courts have reached conflicting decisions as to whether such materials merit continued work product protection in later actions. This Note will discuss the rationale for affording any special protection to a lawyer's work product; examine, in the light of this rationale, the various approaches the courts have taken in dealing with discovery of work product in subsequent litigation; and propose a test for determining when a lawyer's work product from a prior case should be discoverable.

Discovery of an Attorney's Work Product in Subsequent Litigation