McGuireWoods Attorney-Client Privilege/Work Product Case Summary Database

Showing 111 of 111 results

Chapter: 46.5
Case Name: Shanholtzer v. Dean, 51 Va. Cir. 493, 493, 493-94, (Va. Cir. Ct. 2000)
(refusing to compel a party to "identify all items, including statements and photographs, that she reviewed and relied upon in preparation for her deposition"; noting that the party's counsel represented to the court "that all items that Dean reviewed prior to her deposition were items that were previously produced in discovery"; concluding that "forcing Dean to identify what specific items she looked over would only serve to invade defense counsel's work product. Once all documents have been turned over in discovery, answering a question such as this would reveal defense counsel's trial tactics and thoughts by way of showing Plaintiff exactly what the Defendant feels is and is not important to his or her case."; rejecting any decisions relying on Fed. R. Evid. 612 because "they are federal cases that rely on a federal rule of evidence that Virginia has not adopted")

Case Date Jurisdiction State Cite Checked
2000-01-01 State VA

Chapter: 46.302
Case Name: Doe v. Baylor University, 2017 U.S. Dist. LEXIS 127509 (W.D. Tex. Aug. 11, 2017)
(holding that Pepper Hamilton's internal investigation into Baylor's Title IX compliance issues deserved privilege protection, but that the client waived that privilege, and deserved work product protection which Baylor did not waive and which plaintiffs could not overcome; not explaining in detail what communications or documents would be protected only by the privilege and not also by the work product doctrine, and therefore discoverable; noting that work product protection does not depend on public statements about possible litigation; explaining among other things that a Baylor football player had been convicted of rape; "Plaintiffs argue that because Baylor's public statements about the Pepper Hamilton investigation did not mention potential litigation, such litigation could not have been the primary reason Pepper Hamilton was engaged. As with the attorney-client privilege, however, there are no magic words a party must use to invoke the work-product privilege. Further, it is reasonable that a party would not want to announce that it anticipated litigation when engaging outside counsel for fear that doing so might encourage that very litigation."; "[T]he evidence suggests that Baylor would not have engaged Pepper Hamilton to conduct the investigation in question absent the threat of Title IX litigation. The work-product arising out of the Pepper Hamilton investigation is therefore protected."; identifying work product – protected information; "[T]he Court concludes that interview memoranda, notes, emails, presentations, and other 'documents and tangible things that [were] prepared' as part of Pepper Hamilton's investigation, and have not been released, are protected. Additionally, questions that directly seek the mental impressions of Baylor's counsel need not be answered. For example, Baylor did not name specific individuals and data sources in its Findings of Fact or Recommendations and thus need not reveal which documents and interviews formed the bases for those documents. In addition, the documents selected by Pepper Hamilton to be used in an interview, recordings of interviews conducted by Pepper Hamilton, and interview notes made by Pepper Hamilton need not be produced.") (emphases added)

Case Date Jurisdiction State Cite Checked
2017-08-11 Federal TX

Chapter: 46.302
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
(holding that defendant could not overcome plaintiff's work product protection; "[T]he Court wants to make clear that insofar as defendants seek to obtain relevant factual information from any person, including Varnau, the work product doctrine does not prevent the discovery of the underlying facts of a particular dispute. . . Defendants may inquire about the relevant facts by deposing the appropriate witnesses or through other discovery vehicles. . . . it is likely that Varnau will be a fact witness in this case given his work as a volunteer assistant to his wife, Dr. Judith Varnau, at the time of Mr. Goldson's death and during the ensuing inquiry into the cause of his death. Relevant factual information Varnau may have learned while working as an unpaid assistant to the Brown County coroner and then shared with counsel would not be entitled to work product protection. Thus, to the extent defendants may seek documents or deposition testimony from Varnau about the facts underlying the death of Mr. Goldson, such facts must be disclosed. However, because plaintiff's privilege log documents consist of the mental impressions and legal strategy of counsel and Varnau, those documents are not discoverable.")

Case Date Jurisdiction State Cite Checked
2017-07-21 Federal OH

Chapter: 46.302
Case Name: Goff v. United Rentals, Case No. 2:16-cv-608, 2017 U.S. Dist. LEXIS 46588 (E.D. Va. March 28, 2017)
(after an in camera review, concluding that documents held as work product were created in the ordinary course of business after a workplace injury; "Attorney work product immunity is generally divided into two types: opinion work product, which 'involves mental impressions, conclusions, opinions or legal theories . . . which is absolutely immune from discovery;' and fact work product 'prepared in anticipation of litigation or for trial [which] may be discovered, but only with a showing of substantial need.'")

Case Date Jurisdiction State Cite Checked
2017-03-28 Federal VA

Chapter: 46.302
Case Name: Lobel v. Woodland Golf Club of Auburndale, Civ. A. No. 15-13803-FDS, 2016 U.S. Dist. LEXIS 177423 (D. Mass. Dec. 22, 2016)
("Opinion work product reflecting the mental impressions, conclusions or legal theories of a party's attorney or representative receives heightened protection."; "Because document 54-57 depicts Attorney Denner's opinion work product, it is not subject to production.")

Case Date Jurisdiction State Cite Checked
2016-12-22 Federal MA

Chapter: 46.302
Case Name: In re Fluidmaster, Inc. Water Connector Components Products Liability Litig., Case No. 1:14-cv-05696, MDL No. 2575, 2016 U.S. Dist. LEXIS 154618 (N.D. Ill. Nov. 8, 2016)
("Fact work product is discoverable 'in the rare case' where a party demonstrates that he has a substantial need for the materials and that it would be exceedingly difficult to obtain the information through other means. . . . But opinion work product remains protected even where a party makes such a showing.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal IL

Chapter: 46.302
Case Name: Rumble v. Fairview Health Services, Case No. 14-cv-2037 (SRN/FLN), 2016 U.S. Dist. LEXIS 115934 (D. Minn. Aug. 29, 2016)
(holding that the work product doctrine protected notes created by a nonlawyer, but that the plaintiff could overcome the notes and depose the note-taker; "During this deposition, Nelson [In-house lawyer for defendant] will not be required to testify about his impressions of any interviewee's credibility or his conclusions about what the OCR interviews meant for Fairview's potential liability. . . . These are examples of protected opinion work product. However, Nelson may be asked about his recollection of what questions OCR asked and what answers were given by the interviewees. . . . These are examples of ordinary work product. . . . The Court is confident that counsel for both parties can work within these parameters.")

Case Date Jurisdiction State Cite Checked
2016-08-29 Federal MN

Chapter: 46.302
Case Name: In re Hugh Larkin, No. 01-15-00392-CV, 2016 Tex. App. LEXIS 2810 (Tex. App. March 17, 2016)
("Core work product, the work product of an attorney or an attorney's representative, is not discoverable.")

Case Date Jurisdiction State Cite Checked
2016-03-17 Federal TX

Chapter: 46.302
Case Name: Obeid v. La Mack, 14 cv. 6498 (LTS) (MHD), 2015 U.S. Dist. LEXIS 127327 (S.D.N.Y. Sept. 16, 2015)
("If, however, the document reflects the so-called mental processes of the attorney, even a showing of 'substantial need' and 'undue hardship' may not suffice to set aside the presumptive immunity of the material from disclosure.").

Case Date Jurisdiction State Cite Checked
2015-09-16 Federal NY

Chapter: 46.302
Case Name: Judicial Watch, Inc. v. United States Dept. of Justice, Civ. A. No. (BAH) 14-1024, 2015 U.S. Dist. LEXIS 99982 (D.D.C. July 31, 2015)
("'Opinion' work product is given more absolute protection.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal DC

Chapter: 46.302
Case Name: Irving Oil Ltd. v. ACE INA Ins., BCD-CV-09-35, 2015 Me. Super. LEXIS 72 (Me. April 18, 2015)
("Although Rule 26 makes ordinary work product discoverable where there is a substantial need, the Rule specifically protects opinion work-product from disclosure even in the face of undue hardship.")

Case Date Jurisdiction State Cite Checked
2015-04-18 State ME

Chapter: 46.302
Case Name: Butler v. Harter, Case No. 1D14-1342, 2014 Fla. App. LEXIS 19601 (Fla. 1d App. Dec. 2, 2014)
(holding that opinion work product deserved absolute protection; "Even assuming respondent had demonstrated need and undue hardship, the information that she seeks concerning the decision-making strategy and opinions behind petitioner's proposal for settlement includes 'opinion' work product, which is never discoverable.")

Case Date Jurisdiction State Cite Checked
2014-12-02 State FL

Chapter: 46.302
Case Name: In re Baytown Nissan Inc. v. Gray, No. 01-14-00704-CV, 2014 Tex. App. LEXIS 12197 (Tex. Ct. App. Nov. 7, 2014)
("Deposition questions requesting Gray's [Dealer's lawyer] mental impressions regarding his conversation with Phillips [General counsel of the dealer association] (such as whether Phillips's statements 'were consistent with [his] experience') are core work product and not discoverable.")

Case Date Jurisdiction State Cite Checked
2014-11-07 State TX

Chapter: 46.302
Case Name: TP Orthodontics, Inc. v. Kesling, No. 46S03-1405-MI-337, 2014 Ind. LEXIS 715, at *20 (Ind. Sept. 3, 2014)
("Importantly, we have interpreted 'the court shall protect against disclosure' to mean, even upon a showing of hardship, that 'the party seeking discovery is in no event entitled to' the opposing party's attorney's mental impressions, conclusions, opinions, or legal theories.")

Case Date Jurisdiction State Cite Checked
2014-09-03 State IN

Chapter: 46.302
Case Name: Paice, LLC v. Hyundai Motor Co., Civ. No. WDQ-12-0499, 2014 U.S. Dist. LEXIS 95046 (D. Md. July 11, 2014)
("Opinion work product is 'absolutely immune from discovery whether it is actually prepared by the attorney or another representative of the party.'")

Case Date Jurisdiction State Cite Checked
2014-07-11 Federal MD

Chapter: 46.302
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014)
April 16, 2014 (PRIVILEGE POINT)

"Courts Disagree About Basic Work Product Principles: Part I "

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH
Comment:

key case


Chapter: 46.302
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *14-15 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance video tape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "[B]ecause a deposition of defendants' investigators may reveal counsel's tactical or strategic thoughts, deposition questions by opposing counsel must be carefully tailored to elicit specific factual information and 'avoid broad based inquiries . . . which could lead to the disclosure of trial strategies.' . . . While the Court will not limit the questioning to a so-called 'records' deposition as requested by defendants, the Court cautions plaintiffs to carefully craft their deposition questions so as not to elicit 'disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.' Fed. R. Civ. P. 26(b)(3).")

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 46.302
Case Name: Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014)
April 16, 2014 (PRIVILEGE POINT)

"Courts Disagree About Basic Work Product Principles: Part I "

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

Case Date Jurisdiction State Cite Checked
2014-02-11 Federal
Comment:

key case


Chapter: 46.302
Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 869 n.3 (9th Cir. 2014)
April 16, 2014 (PRIVILEGE POINT)

"Courts Disagree About Basic Work Product Principles: Part I "

Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.

Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation" (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as "'virtually undiscoverable.'" 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection -- bluntly stating that "[o]pinion work product is absolutely privileged." Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10th Cir. Feb. 11, 2014). Less than two weeks after that, a district court applied a "near absolute protection" standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).

Perhaps there is little practical difference between a "virtually undiscoverable," "near absolute" and "absolutely privileged" standard, but one might expect courts to articulate the same approach. Next week's Privilege Point will provide another example of courts' disagreement about how to apply a single sentence in the federal rules.

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal
Comment:

key case


Chapter: 46.302
Case Name: Nevada v. J-M Mfg. Co., 555 F. App'x 782, 785 n.2 (10th Cir. 2014)
("Opinion work product is absolutely privileged.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 7/14

Chapter: 46.302
Case Name: In re Myers, Ch. 7 Case No. 11-61426, 2013 Bankr. LEXIS 3468, at *14 (N.D. Ohio Aug. 8, 2013)
("[O]pinion work product, i.e.[,] materials reflecting the attorney's mental impressions, opinion[s], conclusions, judgments or legal theories, is not discoverable.")

Case Date Jurisdiction State Cite Checked
2013-08-08 Federal OH B 4/14

Chapter: 46.302
Case Name: Brown v. Northrop Grumman Corp., No. CV 12-1488 (JS) (ETB), 2013 U.S. Dist. LEXIS 102214, at *8 (E.D.N.Y. July 22, 2013)
(analyzing plaintiff's effort to obtain a defendant representative's notes taken during plaintiff's deposition; eventually finding that the notes deserved opinion work product and that plaintiff could not overcome any work product protection; "[T]he Court finds the notes taken by Cunningham [defendant's representative] to be opinion work product, since they contain his thoughts and impressions of plaintiff's deposition testimony. As stated supra, even where a party has demonstrated a substantial need for the documents at issue, courts must still shield from disclosure opinion work product.")

Case Date Jurisdiction State Cite Checked
2013-07-22 Federal NY B 4/14

Chapter: 46.302
Case Name: Gruss v. Zwirn, No. 09 Civ. 6441 (PGG) (MHD), 2013 U.S. Dist. LEXIS 100012, at *43-44 (S.D.N.Y. July 10, 2013)
("Defendants will produce for this Court's in camera inspection interview notes and summaries pertaining to the twenty-one witnesses whose statements were disclosed to the SEC. The Court will determine what portion of these documents constitutes opinion work product, and will order production of the rest.")

Case Date Jurisdiction State Cite Checked
2013-07-10 Federal NY B 4/14

Chapter: 46.302
Case Name: In re McDaniel, No. 14-13-00127-CV, 2013 Tex. App. LEXIS 4052, at *6 (Tex. App. Mar. 28, 2013)
(holding that tests conducted on a product deserved work product protection; "'Core work product' concerns an attorney's mental processes and is not discoverable. See Tex. R. Civ. P. 192.5(b)(1). 'Other' or 'non-core' work product 'is discoverable only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the material by other means.'" Id. at 192.5(b)(2))

Case Date Jurisdiction State Cite Checked
2013-03-28 State TX B 3/14

Chapter: 46.302
Case Name: Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH
Comment:

key case


Chapter: 46.302
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR
Comment:

key case


Chapter: 46.302
Case Name: Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2012-06-22 Federal CA
Comment:

key case


Chapter: 46.302
Case Name: Chevron Corp. v. Weinberg Grp., 286 F.R.D. 95, 99 (D.D.C. 2012)
("[O]pinion work product . . . is never discoverable.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 46.302
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 110 (D.D.C. 2012)
("[A] showing of substantial need is not sufficient to merit disclosure of opinion work product. Having reviewed the documents, I find that the factual inputs cannot be reasonably segregated from the analytical outputs.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 46.302
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 108 (D.D.C. 2012)
("Documents that are protected by the attorney-client privilege are thus absolutely privileged as is opinion work product.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 46.302
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 83979, at *6 (E.D. Va. Sept. 14, 2009)
(addressing plaintiff's argument that it could overcome the state's work product protection for witness statements taken approximately one month after decedent died at a state-owned hospital; holding that opinion work product deserved "absolute[]" protection)

Case Date Jurisdiction State Cite Checked
2009-09-14 Federal VA N 3/10; B 3/16

Chapter: 46.302
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *8 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "There are two types of work-product: one that is completely immune from discovery and one that is qualifiedly immune. Fire Ins. Co. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992).")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA

Chapter: 46.302
Case Name: Sanford v. Virginia, Civ. A. No. 3:08cv835, 2009 U.S. Dist. LEXIS 66484, at *8 (E.D. Va. July 31, 2009)
(analyzing work product protection for materials created in connection with a patient's death at a hospital; "There are two types of work-product: one that is completely immune from discovery and one that is qualifiedly immune.")

Case Date Jurisdiction State Cite Checked
2009-07-31 Federal VA B 12/10

Chapter: 46.302
Case Name: Schwarz & Schwarz of Va., L.L.C. v. Certain Underwriters at Lloyd's, London, Civ. A. No. 6:07cv00042, 2009 U.S. Dist. LEXIS 33019, at *5-6 n.4 (W.D. Va. Apr. 16, 2009)
("Such 'opinion work product . . . enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.' In re Grand Jury Proceedings, Thurs, Special Grand Jury, 33 F.3d 342, 348 (4th Cir. 1994).")

Case Date Jurisdiction State Cite Checked
2009-04-16 Federal VA B 3/16

Chapter: 46.302
Case Name: Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006)
("Work-product comes in two forms: that which involves an attorney's mental impressions, opinions, legal theories, or conclusions, and that which does not. The former are absolutely protected from discovery. See Hickman v. Taylor, 329 U.S. 495, 510-13, 67 S. Ct. 385, 91 L. Ed. 451 (1947); In re Allen, 106 F.3d 582, 607 (4th Cir. 1997).")

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA B 3/16

Chapter: 46.302
Case Name: Sheets v. Ins. Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *3 (W.D. Va. Nov. 8, 2005)
("Opinion work-product, however, contains the fruit of the attorney's mental processes and, thus, is more scrupulously protected. . . . This Circuit so jealously guards the mental processes of an attorney that it has held that opinion work-product is absolutely immune from discovery. See National Fire Union Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 983 (4th Cir. 1992).")

Case Date Jurisdiction State Cite Checked
2005-11-08 Federal VA B 3/16

Chapter: 46.302
Case Name: Sheets v. Insurance Co. of N. Am., No. 4:04CV00058, 2005 U.S. Dist LEXIS 27060, at *3-4 (W.D. Va. Nov. 8, 2005)
("[A]fter reviewing the correspondence at issue, it is clear that these letters contain the mental processes of plaintiff's attorney as regards his theory of the case and litigation strategy. Thus, the correspondence contains opinion work-product which may not be discovered absent waiver.")

Case Date Jurisdiction State Cite Checked
2005-11-08 Federal VA

Chapter: 46.302
Case Name: In re S<3> LTD., 252 B.R. 355, 363 (E.D. Va. 2000)
("Materials deemed to be opinion work product are wholly privileged from discovery under the work product doctrine. See [Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992)]")

Case Date Jurisdiction State Cite Checked
2000-01-01 Federal VA B 3/16

Chapter: 46.302
Case Name: Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999)
("As we explained in In re Doe, '"an attorney's thoughts are inviolate, . . . and courts should proceed cautiously when requested to adopt a rule that would have an inhibitive effect on an attorney's freedom to express and record his mental impressions and opinions without fear of having these impressions and opinions used against the client."' 662 F. 2d at 1080. As a result, 'opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.' In re Grand Jury Proceedings, 33 F. 3d at 348; see also In re Doe, 662 F.2d at 1079, 1080.

Case Date Jurisdiction State Cite Checked
1999-01-01 Federal

Chapter: 46.302
Case Name: Grove v. Thomasson, 45 Va. Cir. 425, 427 (Va. Cir. Ct. 1998)
(finding that Virginia State Bar's opinion work product materials involving a client's complaints about a Virginia lawyer were entitled to absolute protection (citing In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996))

Case Date Jurisdiction State Cite Checked
1998-01-01 State VA B 3/16

Chapter: 46.302
Case Name: Better Gov't Bureau v. McGraw (In re Allen), 106 F.3d 582, 607 (4th Cir. 1997)
(noting--on the same page--both that opinion work product "enjoys a nearly absolute immunity" and that opinion work product is "absolutely immune from discovery"), cert. denied, 522 U.S. 1047 (1998)

Case Date Jurisdiction State Cite Checked
1997-01-01 Federal

Chapter: 46.302
Case Name: Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992)
(holding that opinion work product "is absolutely immune from discovery"), vacated on settlement, No. 91-1873, 1993 U.S. App. LEXIS 33286, 1993 WL 524680 (4th Cir. Apr. 7, 1993)

Case Date Jurisdiction State Cite Checked
1992-01-01 Federal

Chapter: 46.302
Case Name: Specter v. Hartford Fire Ins. Co., 1 Va. Cir. 199, 200 (Va. Cir. Ct. 1980)
("[E]ven where materials prepared for trial are discoverable, legal opinions of counsel are not.")

Case Date Jurisdiction State Cite Checked
1980-01-01 State VA B 3/16

Chapter: 46.303
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
("Opinion work product encompasses all material that reflects the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. . . . In the Eleventh Circuit, opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 46.303
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
("Opinion work product encompasses all material that reflects the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.")

Case Date Jurisdiction State Cite Checked
2018-05-30 Federal FL

Chapter: 46.303
Case Name: Firefighters' Retirement System v. Citco Group Ltd., Civ. A. 13-373-SDD-EWD, 2018 U.S. Dist. LEXIS 79034 (M.D. La. May 10, 2018)
("[T]he court agrees with Plaintiffs that the structure of Rule 26 protects opinion work product almost absolutely."; "While opinion work product may become subject to disclosure if 'mental impressions are at issue in a case and the need for the material is compelling,' the Citco Defendants have not established that Plaintiffs' counsel's mental impressions are at issue in this case (as they would arguably be in a bad faith insurance settlement matter, for example). Further, courts in this Circuit consistently view waiver of work product protection narrowly.")

Case Date Jurisdiction State Cite Checked
2018-05-10 Federal LA

Chapter: 46.303
Case Name: Drummond Company, Inc. v. Conrad & Scherer, LLP, Nos. 16-11090, 15-90031, 2018 WL (11th Cir. App. March 23, 2018)
(holding that the crime-fraud exception could apply even if the client was innocent of any wrongdoing; "Greater protection is given to the attorney's opinion work product – that is, materials containing 'the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation.' Fed. R. Civ. P. 26(b)(3)(B). Such materials 'enjoy[] a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'")

Case Date Jurisdiction State Cite Checked
2018-03-23 Federal

Chapter: 46.303
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("Opinion work product enjoys 'a nearly absolute immunity.'")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 46.303
Case Name: Chartraw v. City of Shawano, Case No. 16-C-807, 2017 U.S. Dist. LEXIS 187590 (E.D. Wi. Nov. 14, 2017)
("Opinion work product is protected even when the movant establishes the existence of undue hardship, and therefore is for 'all intents and purposes absolute.'")

Case Date Jurisdiction State Cite Checked
2017-11-14 Federal WI

Chapter: 46.303
Case Name: Taber v. Ford Motor Company, Case No. 16-00162-CV-W-SWH, 2017 U.S. Dist. LEXIS 160709 (W.D. Mo. Sept. 29, 2017)
("Opinion work product consists of counsel's mental impressions, conclusions, opinions or legal theories and enjoys almost absolute immunity, making opinion work product discoverable in only rare and extraordinary circumstances.")

Case Date Jurisdiction State Cite Checked
2017-09-29 Federal MO

Chapter: 46.303
Case Name: In re Grand Jury Subpoena: Under Seal 1; Under Seal 2; Under Seal 3 v. United States, No. 16-4096, No. 16-4099, 2017 U.S. App. LEXIS 15671 (4th Cir. App. Aug. 18, 2017)
("Not all work product is treated equally: We afford greater protection to opinion work product than to fact work product. Fact work product is a 'transaction of the factual events involved' and may be obtained upon a mere 'showing of both a substantial need and an inability to secure the substantial equivalent of the materials by alternate means without undue hardship.'. . . Opinion work product, on the other hand, 'represents the actual thoughts and impressions of the attorney,' and it is 'more scrupulously protected.'. . . '[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'")

Case Date Jurisdiction State Cite Checked
2017-08-18 Federal

Chapter: 46.303
Case Name: Bard v. Brown County, Case No. 1:15-cv-00643, 2017 U.S. Dist. LEXIS 114073 (S.D. Ohio July 21, 2017)
("While 'fact' work product may be discoverable upon such a showing, 'opinion' work product is entitled to near absolute protection against disclosure.")

Case Date Jurisdiction State Cite Checked
2017-07-21 Federal OH

Chapter: 46.303
Case Name: The William Powell Co. v. National Indemnity Co., Case No. 1:14-cv-00807, 2017 U.S. Dist. LEXIS 55148 (S.D. Ohio April 11, 2017)
("'Opinion' work product is entitled to near absolute protection against disclosure, while 'fact' work product may be discoverable upon a showing by a party that it has a substantial need for the materials to prepare its case and that it cannot, without undue hardship, obtain substantially equivalent materials by other means.")

Case Date Jurisdiction State Cite Checked
2017-04-11 Federal OH

Chapter: 46.303
Case Name: Endeavor Energy Resources, L.P. v. Gatto & Reitz, LLC, 2:13cv542, 2017 U.S. Dist. LEXIS 48715 (W.D. Pa. March 31, 2017)
("The work-product doctrine protects Endeavor's draft demand letters from disclosure. The control of the letters, as well as the comments and revisions made to them by Endeavor-affiliated individuals, establish that they were made in anticipation of litigation. The comments and revisions on the draft letters are classic forms of work-product, and much of the commentary reflects the type of information that is given near absolute protection from disclosure.")

Case Date Jurisdiction State Cite Checked
2017-03-31 Federal PA

Chapter: 46.303
Case Name: Barge v. State Farm Mutual Automobile Ins. Co., Case No. C16-0249JLR, 2016 U.S. Dist. LEXIS 155066 (W.D.D. Wash. Nov. 8, 2016)
("But even if an insurer demonstrates that an attorney was not serving in a quasi-fiduciary role, an insured may still be able to pierce the insurer's assertion of attorney-client privilege. . . . If the insured asserts that the insurer has engaged 'in an act of bad faith tantamount to civil fraud' and makes 'a showing that a reasonable person would have a reasonable belief that an act of bad faith has occurred' or that an insurer has engaged in a 'bad faith attempt to defeat a meritorious claim,' then the insurer waives the privilege. . . . Something more than an honest disagreement between the insurer and the insured about coverage under the policy must be at play."; "In federal court, opinion work product 'is virtually undiscoverable.'. . . This court has previously agreed that 'reserve information that was created in anticipation of litigation is protected by the work product doctrine.'"; "Therefore, given State Farm's representations that the reserve amounts are based on the opinions and evaluation of State Farm personnel after State Farm reasonably contemplated litigation in this case, State Farm has properly withheld these documents under the work product doctrine.")

Case Date Jurisdiction State Cite Checked
2016-11-08 Federal WA

Chapter: 46.303
Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "'[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'")

Case Date Jurisdiction State Cite Checked
2016-10-25 Federal

Chapter: 46.303
Case Name: Peterson v. Martin Marietta Materials, Inc., No. C14-3059-DEO, 2015 U.S. Dist. LEXIS 138822 (N.D. Iowa Oct. 13, 2015)
("Opinion work product enjoys almost absolute protection against disclosure, making it discoverable in only very rare and extraordinary circumstances.")

Case Date Jurisdiction State Cite Checked
2015-10-13 Federal IA

Chapter: 46.303
Case Name: Moore v. Plains All American GP, LLC, Civ. A. No. 14-4666, 2015 U.S. Dist. LEXIS 124794 (E.D. Pa. Sept. 18, 2015)
(holding that opinion work product received "near absolute protection").

Case Date Jurisdiction State Cite Checked
2015-09-18 Federal PA

Chapter: 46.303
Case Name: Smith v. Scottsdale Insurance Company, No. 15-1002, 2015 U.S. App. LEXIS 13290 (4th Cir. App. July 30, 2015)
("'[O]pinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'")

Case Date Jurisdiction State Cite Checked
2015-07-30 Federal

Chapter: 46.303
Case Name: Charge Injection Technologies, Inc. v. E.I. DuPont de Nemours & Co., C.A. No. 07C-12-134-JRJ, 2015 Del. Super. LEXIS 166 (Del. Super. Ct. March 31, 2015)
(holding payment terms of a litigant's arrangement with a litigation funding company deserved opinion work product protection, which defendant DuPont could not overcome; "In the present case, the payment terms at issue in the Financing Agreement were prepared in anticipation of litigation and reflect the type of attorney mental impressions and litigation strategies which are afforded nearly absolute protection from discovery under the work product doctrine."; "Under Delaware law, the redacted payment terms in the Financing Agreement are entitled to work product protection, and that protection is not precluded merely because the Financing Agreement may also serve a business function. Furthermore, DuPont has not satisfied the more stringent pivotal issue/compelling need standard to overcome CIT's opinion work product protection.")

Case Date Jurisdiction State Cite Checked
2015-03-31 State DE

Chapter: 46.303
Case Name: U.S. Equal Employment Opportunity Comm. v. Pioneer Hotel, Inc., Case No. 2:11-cv-01588-LRH-GWF, 2014 U.S. Dist. LEXIS 142735 (D. Nev. Oct. 6, 2014)
("[T]he attorney's or paralegal's interview notes are considered opinion work product which are entitled to almost absolute immunity from discovery.")

Case Date Jurisdiction State Cite Checked
2014-10-06 Federal NV

Chapter: 46.303
Case Name: Elbert v. C.R. Bard, Inc., Civ. A. No. 12-01253, 2014 U.S. Dist. LEXIS 57073 (E.D. Pa. April 24, 2014)
("The plaintiff herself admits that 'the conclusions of Bard's consultant as to that data' are what she cannot recreate and that which she seeks in discovery. When a document by an attorney or other representative of a party concerning the litigation includes these 'mental impressions, conclusions, opinion, or legal theories,' this 'opinion' work product is 'generally afforded near absolute protection from discovery.'. . . Therefore, a litigation consultant's advice based on information disclosed during private communications between a client, the client's attorney, and the consultant 'may be considered 'opinion' work product which requires a showing of exceptional circumstances in order for it to be discoverable.")

Case Date Jurisdiction State Cite Checked
2014-04-24 Federal PA

Chapter: 46.303
Case Name: Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014)
(finding that the work product doctrine protected defendant's surveillance video tape of a plaintiff, but that the plaintiff could overcome the work product protection; allowing plaintiff to depose defendant's investigator, but protecting opinion work product; "Opinion work product is entitled to near absolute protection against disclosure, while fact work product may be discoverable upon a showing by a party of substantial need for the materials to prepare its case and that it cannot, without undue hardship, obtain substantially equivalent materials by other means.")

Case Date Jurisdiction State Cite Checked
2014-02-24 Federal OH B 7/14

Chapter: 46.303
Case Name: Republic of Ecuador v. MacKay, 742 F.3d 860, 869 n.3 (9th Cir. 2014)
(analyzing opinion work product protection; "It 'is virtually undiscoverable.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal B 6/14

Chapter: 46.303
Case Name: Grayson Consulting, Inc. v. Cathcart, Nos. 2:07-cv-02992- & -00593-DCN, 2013 U.S. Dist. LEXIS 107218, at *11 (D.S.C. July 31, 2013)
(holding that opinion work product deserves "nearly absolute immunity"; "'[E]njoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-07-31 Federal SC B 12/13

Chapter: 46.303
Case Name: Graff v. Haverhill N. Coke Co., Case No. 1:09 cv 670, 2012 U.S. Dist. LEXIS 162013, at *13 (S.D. Ohio Nov. 13, 2012)
("[O]pinion work product is entitled to near absolute protection.")

Case Date Jurisdiction State Cite Checked
2012-11-13 Federal OH B 7/13

Chapter: 46.303
Case Name: In re Equaphor Inc., Ch. 7 Case No. 10 20490 BFK, 2012 Bankr. LEXIS 2129, at *14 (Bankr. E.D. Va. May 11, 2012)
(analyzing the ramifications of a law firm jointly representing a company and two of its executives in a derivative case; noting that the company later declared bankruptcy, and that the bankruptcy trustee moved to compel the turnover of documents the law firm created during the joint representation; inexplicably confusing the joint defense/common interest doctrine and the joint representation situation; ordering the law firm to produce the documents; "[O]pinion work product - that is, work product that contains the mental impressions or theories of counsel - enjoys nearly absolute protection from disclosure under the rules of discovery. See In re Cendant Corp. Sec. Litig., 343 F.3d 658, 662 (3d Cir. 2003); Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999); Fed.R.Civ.P. 26(b)(3)(B)")

Case Date Jurisdiction State Cite Checked
2012-05-11 Federal VA B 3/16

Chapter: 46.303
Case Name: Botkin v. Donegal Mutual Ins. Co., Civ. A. No. 5:10cv00077, 2011 U.S. Dist. LEXIS 63871, at *6 n.3 (W.D. Va. June 15, 2011)
("Such 'opinion work product . . . enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2011-06-15 Federal VA B 3/16

Chapter: 46.303
Case Name: United States v. Regan, 281 F. Supp. 2d 795, 803 (E.D. Va. 2002)
("'Opinion work product enjoys a nearly absolute immunity and can be discovered in very rare and extraordinary circumstances.' . . . . Protection of the attorney's work product may be asserted by either the client or the attorney. See In re Grand Jury Proceedings [v. Under Seal], 33 F.3d [342,] 348 [(4th Cir. 1994)].")

Case Date Jurisdiction State Cite Checked
2002-01-01 Federal VA B 3/16

Chapter: 46.304
Case Name: Kehle v. USAA Casualty Ins. Co., Case No. 17-80447-CV-MARRA/MATTHEWMAN, 2018 U.S. Dist. LEXIS 89846 (S.D. Fla. May 30, 2018)
(adopting the Hearn standard, and applying the at issue doctrine because the plaintiff had relied on the reasonableness of an earlier settlement in a bad faith case against an insurance company; "The subject-matter waiver doctrine provides that a party who injects into the case an issue that in fairness requires an examination of communications otherwise protected by the attorney-client privilege loses that privilege. . . . '[T]he plain language of Fed.R.Civ.P. 26(b)(3) suggests that opinion work product should not be subject to such an implied waiver, and that the rationale behind the doctrine (the fear that a party might 'make affirmative testimonial use' of a communication and then seek to shield it from disclosure) does not apply to mental impressions and legal theories.'"; "In Cox [Cox v. Administrator US. Steel & Carnegie, 17 F.3d 1386, 1421 (11th Cir.1994)], the Eleventh Circuit stated that the 'subject matter waiver doctrine does not extend to materials protected by the opinion work product privilege.'. . . Cox considered the 'very rare and extraordinary circumstances' under which opinion work product can be discovered. The Eleventh Circuit found that the crime-fraud exception presented one of the very rare and exceptional circumstances in which opinion work product is discoverable, but declined to declare the subject matter waiver doctrine as a rare and exceptional circumstance. Id. However, several courts have held, subsequent to Cox, that a party can waive its opinion work-product privilege pursuant to the doctrine of at-issue waiver if it concerns the mental impressions and opinions of counsel in the context of bad faith litigation."; "Both Tolz [Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV, 2010 U.S. Dist. LEXIS 6709, 2010 WL 384745 (S.D. Fla. Jan. 27, 2010)] and Maplewood Partners [Maplewood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 624 (S.D.Fla. 2013)] demonstrate that there are certain situations, often involving cases against an insurer for alleged violations of the duty of good faith, or, as in the instant case, alleged violations of the duty of good faith and reasonableness on the part of the plaintiff, or collusion, where the doctrine of at-issue waiver could constitute one of the 'very rare and extraordinary circumstances' in which opinion work product may be discoverable."; "The instant case involves alleged violations of the duty of good faith and reasonableness on the part of Plaintiff. It would be unfair to prevent Defendant from discovery into information which could potentially shed light on the alleged bad faith conduct of the parties, or lack of good faith and unreasonableness, when it is Plaintiff who is inserting the issues of reasonableness and good faith of the agreement into this case.")

Case Date Jurisdiction State Cite Checked
2018-05-20 Federal FL

Chapter: 46.304
Case Name: Lassiter v. Hidalgo Medical Services, No. 17-cv-0850 JCH/SMV, 2018 U.S. Dist. LEXIS 64972 (D.N.M. April 18, 2018)
("Discovery of opinion work product, i.e., an attorney's mental impressions and legal strategy, is generally permitted only in exceptional circumstances, if at all.")

Case Date Jurisdiction State Cite Checked
2018-04-18 Federal NM

Chapter: 46.304
Case Name: In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 05-MD-1720 (MKB), 2018 U.S. Dist. LEXIS 34113 (E.D.N.Y. Feb. 26, 2018)
(holding that a business person's documents deserved work product protection because they reflected communications with a lawyer; also finding that the opinion work product doctrine could protect opinions from a corporate employee, who counts as a party's "representative"; "As specified by Rule 26 (b)(3)(A) and (B), there are two categories of work product, each afforded a different level of protection -- one that can be subject to discovery upon a showing of 'substantial need' and 'undue hardship' to acquire the document or substantial equivalent (26 (b)(3)(A)), and a second (26 (b)(3)(B)) that, 'at a minimum,' requires 'a highly persuasive showing,' United States v. Adlman, 134 F.3d 1194, 1197 (2d Cir. 1998) (Adlman II), or extraordinary justification to secure its release, In re Grand Jury Proceedings, 219 F.3d 175, 191 (2d Cir. 2000).")

Case Date Jurisdiction State Cite Checked
2018-02-26 Federal NY

Chapter: 46.304
Case Name: United States v. Frostman, Crim No. 4:16cr55, 2016 U.S. Dist. LEXIS 147899 (E.D. Va. Oct. 25, 2016)
(holding that a criminal defendant's lawyer waived opinion work product protection by presenting the criminal defendant in pleading guilty, while declining to acknowledge that the lawyer provided all the necessary warnings to the client before the guilty plea; "[W]hen considering whether the protection of attorney opinion work product may be pierced, courts must also remember that, absent a 'compelling showing' that 'rare situations' exist such that 'weighty considerations of public policy and a proper administration of justice would militate against the nondiscovery of an attorney's mental impressions,' the 'attorney's opinion work product should remain immune from discovery.'. . . Such rare or extraordinary circumstances include, for example, situations where an attorney engages in illegal activity or fraud and attempts to shield himself from criminal prosecution by using the opinion work product protection (the 'crime-fraud exception').")

Case Date Jurisdiction State Cite Checked
2016-10-25 Federal VA

Chapter: 46.304
Case Name: In re Lidoderm Antitrust Litig., Case No. 14-md-02521-WHO, 2016 U.S. Dist. LEXIS 105619 (N.D. Cal. Aug. 9, 2016)
("Opinion work product 'receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances.'")

Case Date Jurisdiction State Cite Checked
2016-08-09 Federal CA

Chapter: 46.304
Case Name: Timmermann's Ranch and Saddle Shop, Inc. v. Pace, No. 11 C 1509, No. 13 C 818, 2016 U.S. Dist. LEXIS 40493 (N.D. Ill. March 28, 2016)
(holding that an exonerated criminal defendant who had filed a civil action against the person who alleged the criminal conduct could not obtain work product prepared by the prosecutor in the unsuccessful criminal case; "In this case, Plaintiffs have failed to satisfy their burden to show a 'far stronger' need of necessity and unavailability as required by Upjohn. The SA has already provided most of Ms. Pace's case file, and Ms. Pace will have the opportunity to depose the ASAs.")

Case Date Jurisdiction State Cite Checked
2016-03-28 Federal IL

Chapter: 46.304
Case Name: Gilead Sciences, Inc. v. Merck & Co., Case No. 5:13-cv-04057-BLF, 2016 U.S. Dist. LEXIS 3263 (N.D. Cal. Jan. 11, 2016)
("In the Ninth Circuit, '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.'")

Case Date Jurisdiction State Cite Checked
2016-01-11 Federal CA
Comment:

key case


Chapter: 46.304
Case Name: Hausman v. Holland America Line-U.S.A., Case No. 2:13-cv-00937-BJR, 2015 U.S. Dist. LEXIS 165179 (W.D. Wash. Dec. 9, 2015)
(holding that a paralegal's witness interview notes deserved opinion work product protection; "Discovery of 'opinion work-product is therefore permissible only where a party has made 'a far stronger showing of necessity and unavailability for other means' than would otherwise be sufficient for discovery of 'fact' work product.")

Case Date Jurisdiction State Cite Checked
2015-12-09 Federal WA

Chapter: 46.304
Case Name: Patrick v. City of Chicago, No. 14 C 3658, 2015 U.S. Dist. LEXIS 145811 (N.D. Ill. Oct. 28, 2015)
("'The showing necessary to obtain opinion work product far exceeds the substantial need/undue hardship test required under Rule 26(b)(3) for non-opinion work product.'")

Case Date Jurisdiction State Cite Checked
2015-10-28 Federal IL

Chapter: 46.304
Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "Since opinion work product is essentially inviolate and protected from discovery, the undersigned further finds that the DAPs [Direct Action Plaintiffs] have failed to bear the burden of justifying invasion of the protection afforded attorney opinion work product."; "[A]s in Hickman v Taylor, it appears that no showing of necessity can justify production, where any facts contained in the memoranda are so intertwined with core work product and are subject to the dangers of inaccuracy or untrustworthiness.")

Case Date Jurisdiction State Cite Checked
2015-10-05 Federal CA

Chapter: 46.304
Case Name: Baylor v. Mitchell Rubenstein & Associates, P.C., Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (D.D.C. July 31, 2015)
(holding that opinion work product could be overcome with an "extraordinary showing of necessity.")

Case Date Jurisdiction State Cite Checked
2015-07-31 Federal DC

Chapter: 46.304
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "[M]any courts have delineated a clear distinction between fact work product, which may be discovered upon a showing of substantial need, and opinion work product, which enjoys heightened protections. The Fourth Circuit has even held that opinion work product is absolutely protected and never subject to discovery. . . . While most other circuits examining the issue seem to agree that the Fourth Circuit's interpretation goes too far, there is a consensus that opinion work product can be turned over only in very limited circumstances.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 46.304
Case Name: In re Sadler Clinic, PLLC v. Angelica Textile Svcs., Inc., Case No. 12-34546, Ch. 7, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369 (S.D. Tex. April 17, 2015)
(analyzing various work product issues; "Reviewing the memorandum would obviously be 'helpful' to Angelica's counsel in deposing O'Boyle or another Strasburger witness. But the standard for turning over work product is not whether the materials are merely 'helpful.' Angelica has not made a showing of compelling or extraordinary need that would justify disclosure of the memorandum.")

Case Date Jurisdiction State Cite Checked
2015-04-17 Federal TX

Chapter: 46.304
Case Name: FTC v. Boehringer Ingelheim Pharmaceuticals, Inc., No. 12-5393, 2015 U.S. App. LEXIS 2559 (D.C. App. Feb. 20, 2015)
(analyzing work product protection for documents created in connection with the companies' litigation settlement that resulted in a "co-promotion agreement"; finding that the work product protection is a business arrangement that was part of a settlement, in remanding to the trial court to review post-settlement documents; "A party generally must make an 'extraordinary showing of necessity' to obtain opinion work product.")

Case Date Jurisdiction State Cite Checked
2015-02-20 Federal DC

Chapter: 46.304
Case Name: Galloway v. Sunbelt Rentals, Inc., Civ. A. No. 5:14-cv-00040, 2015 U.S. Dist. LEXIS 4121 (W.D. Va. Jan. 14, 2015)
("Opinion work product is heavily protected and 'can be discovered only in very rare and extraordinary circumstances.'"; "In this case, defense counsel were retained specifically to handle any litigation arising out of Galloway's accident . . . And the Underwoods were questioned to preserve their statements in case they were unavailable for deposition or trial testimony. . . . The Defendants make clear that the Underwoods' statements were not taken in the regular course of Sunbelt's business.")

Case Date Jurisdiction State Cite Checked
2015-01-14 Federal VA

Chapter: 46.304
Case Name: Baylor v. Mitchell Rubenstein & Associates, Case No. 1:13-cv-01995 (ABJ-GMH), 2015 U.S. Dist. LEXIS 100183 (U.S. D.D.C. 2015)
("For opinion work product, the party must 'make an 'extraordinary showing of necessity.'")

Case Date Jurisdiction State Cite Checked
2015-01-01 Federal DC

Chapter: 46.304
Case Name: In the Matter of Bertucci Contracting Co., L.L.C., Civ. A. No. 12-664 C/W 12-697 C/W 12-1783 C/W 12-1912 C/W 12-1914, Ref. All Cases Section "J" (3), 2014 U.S. Dist. LEXIS 72986 (E.D. La. May 27, 2014)
("Opinion or core work product merits special protection from discovery pursuant to Rule 26(b)(3)(B)."

Case Date Jurisdiction State Cite Checked
2014-05-27 Federal LA

Chapter: 46.304
Case Name: Schomburg v. Bologna, 298 F.R.D. 138, 143 (S.D.N.Y. 2014)
("Although work product protection will not extend to the Investigation File's factual work product, Plaintiff's briefs are not clear as to whether she has requested for core work product. In any event, Plaintiff has not demonstrated 'a highly persuasive showing of need' needed for core work product. . . . Plaintiff is not entitled to any core work product in the Investigation File.")

Case Date Jurisdiction State Cite Checked
2014-01-01 Federal NY B 8/14

Chapter: 46.304
Case Name: In re MDM Marina Corp., No. 13-cv-597 (ENV) (VMS), 2013 U.S. Dist. LEXIS 177916, at *9 (E.D.N.Y. Dec. 18, 2013)
(analyzing protections in a first party insurance context; "[I]n contrast, opinion work product is not discoverable absent a 'highly persuasive showing' of need." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-12-18 Federal NY B 5/14

Chapter: 46.304
Case Name: Mosley v. Am. Home Assurance Co., Case No. 13-20259-CIV-KING/GARBER, 2013 U.S. Dist. LEXIS 168016, at *14 n.2 (S.D. Fla. Nov. 26, 2013)
(analyzing privilege protection in a first party insurance situation; "The Mosleys have not established the 'very rare and extraordinary circumstances' that would warrant waiving the privilege as to opinion work product." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-11-26 Federal FL B 5/14

Chapter: 46.304
Case Name: SEC v. Nadel, No. CV 11-215 (WFK) (AKT), 2013 U.S. Dist. LEXIS 36251, at *3 (E.D.N.Y. Mar. 15, 2013)
("Opinion work product, however, is entitled to greater protection, and, in order to obtain such material, the party seeking disclosure must make a 'far stronger showing of necessity and unavailability by other means.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 46.304
Case Name: Burtch v. Luminescent Sys., Inc. (In re AE Liquidation, Inc.), Ch. 7 Case No. 08-13031 (MFW), Adv. Nos. 10-55460 & -55384 (MFW), 2012 Bankr. LEXIS 5710, at *11 (Bankr. D. Del. Dec. 11, 2012)
("While neither ordinary nor opinion work product contains an absolute protection, opinion work product 'requires a heightened showing of extraordinary circumstances' for it to be discoverable." (citation omitted))

Case Date Jurisdiction State Cite Checked
2012-12-11 Federal DE B 9/13

Chapter: 46.304
Case Name: FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 107 (D.D.C. 2012)
(adopting the "because of" standard; "[W]hen the requesting party can meet this burden, only 'factual' work product will be disclosed; 'opinion' work product, which reveals the mental processes or impressions of an attorney or his or her agents, will still receive the utmost protection.")

Case Date Jurisdiction State Cite Checked
2012-01-01 Federal DC B 10/13

Chapter: 46.304
Case Name: In re Grand Jury Subpoena, 463 F. Supp. 2d 573, 575-576 (W.D. Va. 2006)
("There are two types of work product material: opinion work product and fact work product. In re: Grand Jury Proceedings, 33 F.3d 342, 348 (4th Cir. 1994). Opinion work product includes the thoughts and mental impressions of an attorney. Id. (citing In re John Doe, 662 F.2d 1073, 1079-80 (4th Cir. 1981)). Therefore, it can only be discovered in 'extraordinary circumstances,' and the requesting party must demonstrate a 'compelling' need. In re John Doe, 662 F.2d at 1080.")

Case Date Jurisdiction State Cite Checked
2006-01-01 Federal VA

Chapter: 46.305
Case Name: Colley v. Dickenson County School Bd., Case No. 2:17-cv-00003, 2017 U.S. Dist. LEXIS 193243 (W.D. Va. Nov. 22, 2017)
("Opinion work product, material that contains the thoughts and impressions of counsel, is protected to a greater extent than fact work product.")

Case Date Jurisdiction State Cite Checked
2017-11-22 Federal VA

Chapter: 46.305
Case Name: In re Premera Blue Cross Customer Data Breach Litig., Case No. 3:15-md-2633-SI, 2017 U.S. Dist. LEXIS 178762 (D. Ore. Oct. 27, 2017)
(holding that Premera Blue Cross's investigation did not protect its investigation into a data breach; "To obtain the opinion or core work product, however, an opposing party must show that the mental impressions of counsel are at issue in the case and the need for the material is compelling.")

Case Date Jurisdiction State Cite Checked
2017-10-27 Federal OR

Chapter: 46.305
Case Name: Greater New York Taxi Assoc. v. The City of New York, 13 Civ. 3089 (VSB) (JCF), 2017 U.S. Dist. LEXIS 146655 (S.D.N.Y. Sept. 11, 2017)
("Opinion work product is protected from discovery 'unless a highly persuasive showing [of need] is made.'")

Case Date Jurisdiction State Cite Checked
2017-09-11 Federal NY

Chapter: 46.305
Case Name: The New York Times Co. v. U.S. Dept. of Justice, 14-CV-3777 (JPO), 2015 U.S. Dist. LEXIS 133520 (S.D.N.Y. Sept. 30, 2015)
("Opinion work product -- which, as its name suggests, constitutes counsel's opinions regarding the litigation -- is entitled to greater protection than factual work product.")

Case Date Jurisdiction State Cite Checked
2015-09-30 Federal NY

Chapter: 46.305
Case Name: Charge Injection Technologies, Inc. v. E.I. DuPont de Nemours & Co., C.A. No. 07C-12-134-JRJ, 2015 Del. Super. LEXIS 166 (Del. Super. Ct. March 31, 2015)
("Disclosure of opinion work product is subject to a more stringent standard, and a court will protect opinion work product unless the requesting party can show that it is directed to the pivotal issue in the litigation and the need for the information is compelling.")

Case Date Jurisdiction State Cite Checked
2015-03-31 State DE

Chapter: 46.305
Case Name: Broadrock Gas Svcs., LLC v. AIG Specialty Ins. Co., 14 cv. 3927 (AJN) (MHD), 2015 U.S. Dist. LEXIS 26462 (S.D.N.Y. March 2, 2015)
(analyzing privilege issues in a first party bad faith case; "If . . . The withheld document contains so-called mental-processes work product of the lawyer -- as is apparently the case here -- even a showing of 'substantial need' and 'undue hardship' may not justify mandated production.")

Case Date Jurisdiction State Cite Checked
2015-03-02 Federal NY

Chapter: 46.305
Case Name: Liberty International Underwriters Canada v. Scottsdale Ins. Co., Civ. No. 12-4934 (NLH/JS), 2014 U.S. Dist. LEXIS 170722 (D.N.J. Dec. 10, 2014)
("'[O]pinion work-product' is not absolutely protected and may be produced in rare circumstances.")

Case Date Jurisdiction State Cite Checked
2014-12-10 Federal NJ

Chapter: 46.305
Case Name: Arfa v. Zionist Org. of Am., Case No. CV 13-2942 ABC (SS), 2014 U.S. Dist. LEXIS 26970, at *13 (C.D. Cal. Mar. 3, 2014)
("In contrast, opinion work product may be discovered only 'when mental impressions are at issue in a case and the need for the material is compelling.'" (citation omitted))

Case Date Jurisdiction State Cite Checked
2014-03-03 Federal CA B 8/14

Chapter: 46.305
Case Name: JPMorgan Chase & Co. v. Am. Century Co., C.A. No. 6875-VCN, 2013 Del. Ch. LEXIS 101, at *18-19 (Del. Ch. Apr. 18, 2013)
(finding that the work product doctrine protected JPMorgan's reserve figures, but that triggered an at issue waiver requiring production of the litigation reserve numbers; holding that the numbers deserved opinion work product protection, but that an adversary could overcome that protection; "This type of work product -- known as 'opinion' work product -- is only discoverable under Delaware law when a more stringent standard is met. 'A court will protect opinion work product unless the requesting party can show that it is directed to the pivotal issue in the current litigation and the need for the information is compelling.'. . . American Century is entitled to the litigation reserve discovery even though it is opinion work product.")

Case Date Jurisdiction State Cite Checked
2013-04-18 State DE B 3/14

Chapter: 46.305
Case Name: Walker v. N.H. Admin. Office of the Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9 (D.N.H. Feb. 22, 2013)
(analyzing documents created during an investigation of a court clerk's suicide, allegedly caused by workplace harassment; "'[O]pinion' work-product qualifies for 'greater protection' than so-called fact work-product." (citation omitted))

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NH B 3/14

Chapter: 46.305
Case Name: Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2013-02-22 Federal NY
Comment:

key case


Chapter: 46.305
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR
Comment:

key case


Chapter: 46.305
Case Name: Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 1478, at *10 (D. Ore. Feb. 4, 2013)
("The work-product doctrine affords special protections for materials that reveal an attorney's mental impressions and opinions ('opinion' or 'core' work product).")

Case Date Jurisdiction State Cite Checked
2013-02-04 Federal OR B 2/14

Chapter: 46.305
Case Name: Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 634 (D. Nev. 2013)
("Opinion work product, an attorney's mental impressions, conclusions, opinions or legal theories, is only discoverable when counsel's mental impressions are at issue and there is a compelling need for disclosure.")

Case Date Jurisdiction State Cite Checked
2013-01-01 Federal NV B 3/14

Chapter: 46.305
Case Name: Chambers v. Gold Medal Bakery, Inc., 983 N.E.2d 683, 690 n.22 (Mass. 2013)
(holding that directors whose interests are adverse to the corporation's interest cannot rely on their role as shareholders or on the Garner (Garner v. Wolfinbarger, 430 F.2d 1093 (5th Cir. 1970)) doctrine to obtain privileged corporate documents; "Opinion work product, in contrast, is generally not open to discovery.")

Case Date Jurisdiction State Cite Checked
2013-01-01 State MA B 3/14

Chapter: 46.305
Case Name: Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012)
May 15, 2013 (PRIVILEGE POINT)

"What Level of Protection Does "Opinion" Work Product Deserve?"

Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant's work product protection "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Some lawyers mistakenly believe that only a lawyer's opinion deserves this protection, despite the rule's literal language to the contrary.

Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl's Dep't Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase "special protections." A few weeks later, the District of New Hampshire indicated that opinion work product only "qualifies for 'greater protection' than so-called fact work-product." Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).

In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.

Case Date Jurisdiction State Cite Checked
2012-06-22 Federal CA
Comment:

key case


Chapter: 46.305
Case Name: State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D. Va. 1984)
(analyzing privilege and work product issues in a first party insurance case; "Discovery of reports containing mental impressions and opinions of investigating agents and employees also is conditional upon a strong showing of need and hardship if they were prepared in anticipation of trial.")

Case Date Jurisdiction State Cite Checked
1984-06-14 Federal VA B 7/16

Chapter: 46.306
Case Name: In re Superior Nat'l Ins. GR v. JP Morgan Chase, Chapter 11, Case No.: 1:00-bk-14099-GM, Adv No: 1:13-ap-01099-GM, 2014 Bankr. LEXIS 3885, at *27-28 (C.D. Cal. Sept. 11, 2014)
("[N]on-opinion work product relevant to the parties' intent is governed by a more relaxed standard of substantial need and undue hardship, while the threshold for 'at issue' waiver of opinion work product is higher than either attorney-client communication or non-opinion work-product. As there are no cases that apply the work product 'at issue' waiver standards to this situation, the Court will apply the same reasoning as in attorney-client communication.")

Case Date Jurisdiction State Cite Checked
2014-09-11 Federal CA