Washington Law Review


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.

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