It should come as no surprise that litigants normally seek discovery about their adversaries’ legal contentions and factual support. On the other hand, litigants’ lawyers understandably consider their trial strategy and their selection of factual support to be protected work product until they have made final decisions about both. How does the law reconcile these two competing interests?
In HealthEdge Software, Inc. v. Sharp Health Plan, plaintiff objected on work product grounds to defendant’s request that plaintiff produce (among other things) “[a]ll DOCUMENTS upon which [HealthEdge] relies in support of its affirmative defenses set forth in its answer to the [Sharp] counterclaim.” Civ. A. No. 19-cv-11020-ADB, 2021 U.S. Dist. LEXIS 88061, at *12 (D. Mass. May 6, 2021) (second and third alterations in original). After acknowledging that HealthEdge must “eventually respond to these requests,” the court upheld HealthEdge’s objection – pointing to Federal Rule of Civil Procedure 33(a)(2)’s provision allowing the court to “order that such discovery requests not be responded to until later in the litigation.” Id. at *12-13. The court then invited defendant Sharp to “renew these requests for production at the close of discovery, at which point HealthEdge shall respond.” Id. at *13.
This common sense approach reconciles the competing interests. It also highlights a basic distinction between the attorney-client privilege and the work product doctrine. Lawyers create work product with the intention of eventually disclosing much of it.