Opinion work product generally has remained immune from discovery, although two increasingly problematic exceptions have developed to counter this immunity. The vague "at-issue" exception permits discovery of documented mental impressions when those mental impressions are central to the subject matter of the suit. The overly narrow "crime-fraud" exception opens opinion work product to discovery when it has been developed in furtherance of a crime or fraud. Because these redundant yet inadequate exceptions share common elements and goals, courts should streamline this important area of discovery law by condensing them into a new misconduct exception.
Andrea L. Borgford,
The Protected Staus of Opinion Work Product: A Misconduct Exception,
68 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol68/iss4/5