Note:
James Holmes, The Disruption of Mandatory Disclosure with the Work Product Doctrine: An Analysis of a Potential Problem and a Proposed Solution, 73 TEXAS L. REV. 177 (1994).
 

Abstract:
Holmes’s Note is concerned with the “troubling” fact that the Federal Rules of Civil Procedure combine the adversary model of litigation with broad, party-initiated, and party controlled discovery of all relevant information. The paradoxical result of this combination is that litigants who will later battle over their legal standings at trial or at the settlement table must put aside their adversarial tendencies and cooperate to ensure all relevant information is exchanged between them. Newly crafted mandatory disclosure provisions are intended to accelerate and lessen the cost of party initiated and controlled discovery. The work product doctrine provides one way in which attorneys can avoid revealing information pursuant to these mandatory disclosure duties.” Intangible opinion work product” is the elusive category of protected work product that includes the unrecorded mental impressions, conclusions, opinions and legal theories of litigants. It has been argued that in turning over the fruits of their investigations pursuant to compliance with mandatory disclosure requirements can revel litigants “intangible opinion work product.” Holmes attempts to delineate the complicated category of work product protection referred to as intangible opinion work product opinion and describes how it can potentially disrupt the mandatory disclosure of information.