Last week’s Privilege Point addressed litigants’ need to identify the exact moment when they first anticipated litigation. Another work product issue involves the degree of protection afforded opinion work product.
Under Fed. R. Civ. P. 26(b)(3)(B), courts concluding that an adversary may overcome a litigant’s work product claim “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Courts disagree about that protection level. Some courts provide absolute protection, while other courts explain that work product “‘is afforded almost absolute protection’ and . . . ‘is discoverable'” only upon a showing of rare and exceptional circumstances.'” Pace-O-Matic, Inc. v. Eckert Seamans Cherin & Mellott, LLC, Civ. A. No. 1:20-cv-00292, 2021 U.S. Dist. LEXIS 221183, at * 12 (M.D. Pa. Nov. 16, 2021) (citation omitted). In Doe v. George Washington University, Civ. A. No. 18-1391 (RBW), — F. Supp. 3d —, 2021 U.S. Dist. LEXIS 223453, at *18 (D.D.C. Nov. 19, 2021), the court first stated that “[a]s the plaintiffs correctly note, ‘pure opinion work product [] is undiscoverable.” (second alteration in original) (emphasis added). But just a few sentences later, the court explained that “opinion work product[] ‘is virtually undiscoverable.'” Id. (alteration in original) (emphasis added) (citation omitted). Of course, those are two very different standards.
It is difficult enough for litigants to determine which standard the pertinent court applies, but the analysis becomes more difficult when a court as prestigious as the District of Columbia District Court articulates contradictory standards in the same paragraph.