We call them rules, but come on. “No spitting allowed” is a rule. “One to a customer” is a rule. Rules resolve things; they prevent controversy. But if you have come to believe that the Federal Rules of Evidence and the Federal Rules of Civil Procedure are rules, you should ask for a refund on your law school tuition. We call them Federal Rules, but in large measure they can be interpreted in myriad ways. They often provide no clear-cut answers. They contradict one another. These rules do not rule.
Rock, paper, scissors. One rule trumps another. Start with the rule that “all relevant evidence is admissible” (Fed. R. Evid. 402) except, of course, as otherwise provided by some other rule. Rock. Work product, by definition, is relevant to the litigation, but work product — especially core work product that goes to the mental impressions of the attorney — is entitled to “nearly absolute” protection against discovery. (Fed. R. Civ. P. 26(b)(3)). But enter Federal Rule of Evidence 612. If you use a document — even a core work product document — to refresh recollection, the “adverse party is entitled to have the writing.” Scissors.
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