Most courts recognize a doctrine first articulated in Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985), which protects as opinion work product lawyers' selection of intrinsically unprotected documents, witnesses, etc. – if that selection reflects the lawyers' opinion or strategy. The Sporck doctrine can protect the identity of intrinsically unprotected documents lawyers consider significant enough to show a deposition witness or witnesses important enough to interview.
But the Sporck doctrine only applies if both parties have the same access to the intrinsically unprotected documents or witnesses. In United States v. Adams, the court acknowledged that the work product doctrine protected communications between Adams (criminal defendant/lawyer) and his paralegal that "involve[d] the gathering of information in anticipation of litigation." Case No. 0:17-cr-00064-DWF-KMM, 2018 U.S. Dist. LEXIS 184490, at *21 (D. Minn. Oct. 27, 2018). The court then correctly noted that "[i]n an ordinary civil case, the underlying documents would have been independently produced in discovery." Id. at *22. But because Adams had withheld the underlying documents, the court did not know whether the government had "obtained the underlying documents through investigative tool other than the execution of the search warrant." Id. at *22-23. The court concluded that "[i]f Mr. Adams can confirm that the government has access to these underlying documents, then no production of them is necessary." Id. at *23. Otherwise, the parties would have to "meet and confer regarding the proper means by which production of them should be accomplished." Id.
In a footnote, the court offered an intriguing possible solution – "for the documents at issue to be produced with new document identifiers so that the government could not readily infer which documents were believed to be important for which pieces of litigation and for what purposes." Id. at *23 n.4. As with other work product issues, the Sporck doctrine can involve tricky logistics – because it protects only the identity of lawyer-selected intrinsically unprotected documents to which both parties must have equal access.