Defining the Line Between Factual and Opinion Work Product

April 3, 2002

Courts often have to determine whether work product is factual work product or “opinion” work product, because the latter receives a higher level of protection than the former. Opinion work product obviously includes lawyer memoranda, legal analysis, etc., but the term often has broader applications.

In Smithkline Beecham Corp. v. Pentech Pharmaceuticals, Inc., No. 00 C 2855, (2001 U.S. Dist. LEXIS 18281 (N.D. Ill. 2001), the Court held that the work product doctrine protected details of a party’s scientific tests, because “the kinds of tests performed, the materials used in the tests, and the specific compounds tested may reveal the attorney’s strategy in defending the infringement claim.”

Lawyers seeking the higher level of protection that is afforded to opinion work product should look for ways to explain how materials that might seem at first blush to be merely factual work product actually reflect the lawyers’ opinions.