Delicate and Difficult Task: Balancing the Competing Interests of Federal Rule of Evidence 612, the Work Product Doctrine, and the Attorney-Client Privilege

In deciding Hickman v. Taylor, the United States Supreme Court was charged with balancing a policy of liberal discovery with a basic tenet of the adversary system-that each party must develop and present its own case. In a mastery of understatement, the court noted: "[p]roperly to balance these competing interests is a delicate and difficult task." One of these tasks is to resolve the tension between the need for a party to have everything necessary to cross-examine a witness effectively and the policies underlying protection of information through the work product doctrine and the attorney-client privilege. The legal rules causing this underlying tension are Federal Rule of Evidence 612, Federal Rule of Civil Procedure 26(b)(3), and the rules surrounding attorney-client privilege. This Article suggests that the attempt to reconcile the rules has led to confusion and frustration in the courts that have considered the issue and that the confusion and frustration should be relieved by an amendment to Rule 612. Such an amendment would save parties and courts time, expense, and uncertainty, and would insure that the conflict is resolved consistently with congressional intent. The conflict has left trial courts bogged in discovery disputes and has led to inconsistent application of Rule 612. It also presents problems for the attorney who has a duty to properly prepare witnesses but wants to avoid waiver.