Although on its face the work product doctrine provides increased protection to what is called “opinion” work product, courts disagree about the degree of protection that such opinion work product deserves.
One recent decision recognized this debate. In Cardtoons, L.C. v. Major League Baseball Players Ass’n, 199 F.R.D. 677, 684-85 (N.D. Okla. 2001), the court explained that “[t]he Circuits are split as to the degree of protection afforded opinion work product. Some circuits have found opinion work product is absolutely protected while others have permitted discovery.” The Court concluded that the Tenth Circuit had not decided the issue.
Lawyers should become familiar with the level of opinion work product protection recognized by applicable courts—it could make the difference between withholding important pre-trial material and having to produce it under the lower standard of protection applicable to factual work product