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The Supreme Court, however, has so far declined to
decide whether opinion work product is absolutely
protected from discovery. Id. at 401, 101 S.Ct. at
688.
* * * * * * *
We agree with the several courts and commentators
that have concluded that opinion work product may be
discovered and admitted when mental impressions are at
issue in a case and the need for the material is
compelling. * * *
Both elements are met here. In a bad faith
insurance claim settlement case, the “strategy, mental
impressions and opinion of [the insurer’s] agents
concerning the handling of the claim are directly at
issue”. * * * Further, Holmgren’s need for the exhibits
was compelling. * * *
See generally Wright, Miller & Marcus, sec. 2026.
Petitioners contend that our Rule 91(a)(1)8 “requires
Respondent to provide Ms. Welhaf’s Memorandum in its entirety so
8 Rule 91(a)(1) provides, in pertinent part, as follows:
RULE 91. STIPULATIONS FOR TRIAL
(a) Stipulations Required: (1) General: The
parties are required to stipulate, to the fullest
extent to which complete or qualified agreement can or
fairly should be reached, all matters not privileged
which are relevant to the pending case, regardless of
whether such matters involve fact or opinion or the
application of law to fact. Included in matters
required to be stipulated are all facts, all documents
and papers or contents or aspects thereof, and all
evidence which fairly should not be in dispute. * * *
The requirement of stipulation applies under this Rule
without regard to where the burden of proof may lie
with respect to the matters involved. Documents or
papers or other exhibits annexed to or filed with the
stipulation shall be considered to be part of the
stipulation.
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