TITLE FIVE — PRIVILEGES AND DISQUALIFICATION
Rule 504. Work Product; Trial Preparation Material
Nature of the Protection. Material prepared in anticipation of litigation or for trial by or for a party or that party’s representative, including the party’s attorney, consultant, indemnitor, insurer, or agent, is protected from disclosure as trial preparation material. The protection is recognized by Rid. R. Civ. P. 19(4) and by Rid. R. Crim. P. 14(a)(5), and is a protection within Rule 502(b)(2). It is not the attorney-client privilege and does not depend upon a confidential communication.
Who May Assert. The protection may be asserted by the party for whom the material was prepared and by the attorney or representative who prepared it, and either may assert it although the other does not. A waiver by the party does not of itself waive the protection of the attorney’s own mental impressions, conclusions, opinions, or legal theories.
Opinion Work Product. The mental impressions, conclusions, opinions, and legal theories of an attorney or other representative of a party concerning the litigation are protected absolutely. No showing of need or of hardship overcomes the protection, and where the court orders the production of other trial preparation material it shall protect against the disclosure of such matter, as Rid. R. Civ. P. 19(4)(b) requires. A witness shall not be examined upon such matter, and material containing such matter shall not be received in evidence, except upon a waiver by the person who holds the protection or upon a finding under Rule 503(f) that the attorney participated in a crime or fraud.
Ordinary Work Product. Other trial preparation material may be discovered only where it is otherwise discoverable and the party seeking it shows a substantial need for the material to prepare its case and an inability, without undue hardship, to obtain the substantial equivalent by other means, as Rid. R. Civ. P. 19(4)(a) provides.
Criminal Cases. In a criminal case, neither party may obtain by discovery those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions of the adverse party or its attorney and legal staff, or statements of a defendant, signed or unsigned, made to the attorney for the defendant or the attorney’s legal staff, as Rid. R. Crim. P. 14(a)(5) provides. This rule does not limit the duty of the prosecution to disclose facts of an exculpatory nature under Rid. R. Crim. P. 14(a)(1)(A)(iii), which is not defeated by any protection stated in this rule.
A Person’s Own Statement. A party or other person may obtain that person’s own previous statement about the action or its subject matter without the showing required by Rule 504(d), as Rid. R. Civ. P. 19(4)(c) provides.
Experts. The protection extends to drafts of an expert report or disclosure, in whatever form recorded, and to communications between a party’s attorney and a retained expert, except as Rid. R. Civ. P. 19(5)(d) and 19(5)(e) provide.
Waiver.
The protection is waived by disclosure of the material to an adversary, or to a person in circumstances materially increasing the likelihood that an adversary will obtain it.
The protection is not waived by disclosure to a person with whom the holder shares a common legal interest, by disclosure to a consultant or agent engaged to assist in the litigation, or by disclosure to the court under Rule 501(i).
Rule 509 otherwise governs waiver. A subject-matter waiver under Rule 509(c) does not extend to opinion work product.
Assertion; Procedure. Rule 501 governs the assertion of the protection, including the particularity required by Rule 501(g), the log required by Rid. R. Civ. P. 19(6)(a), and in camera review. Trial preparation material shall not be tendered to the electronic filing system for the purpose of establishing the protection.
Duration. The protection continues after the litigation for which the material was prepared has ended, and extends to a later action, whether or not related, so long as the material remains within Rule 504(a).