Court Issues Strange Intangible Work Product Decision

October 20, 2021

Although the federal work product rule and parallel state work product rules extend only to "documents and tangible things," most courts also protect intangible work product such as oral communications – at least to the extent that they reflect a lawyer's thought process. But it can be difficult to distinguish between such intangible work product and historical facts, which of course do not deserve any protection.

In Arizona Grain Inc. v. Barkley Ag Enterprises LLC, No. CV-18-03371-PHX-GMS, 2021 U.S. Dist. LEXIS 136049 (D. Ariz. July 21, 2021), plaintiff deposed a defendant's executive vice president, who had attended an interview conducted by defendant's lawyer of a former employee of defendant's predecessor-in-interest. Plaintiff's lawyer had asked the vice president "what [the former employee] said during the course of [the interview]." Id. at *2 (second alteration in original). Defendant's lawyer had objected on work product grounds. The judge rejected the work product claim – stating that the former employee's "answers are not sufficiently tied to an attorney's mental processes to warrant protection." Id. at *4.

The court's ruling would make sense if the former employee's answers were extensive and general. But if they were focused and narrow, disclosing them presumably would provide palpable insight into defendant's lawyer's specific areas of inquiry, worrisome topics, etc. It would have been better for the court to simply direct plaintiff's lawyer to ask his or her own questions about the historic facts – rather than allowing him to piggyback on the defendant's lawyer's questions.

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