Showing 94 of 94 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 Jurisidction State Cite Checked
2000-01-01 State VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
1980-01-01 State VA B 3/16

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2002-01-01 Federal VA B 3/16

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2006-01-01 Federal VA

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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction 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 Jurisidction State Cite Checked
2014-09-11 Federal CA