One branch of the “opinion” work product doctrine protects the identity of documents selected by a lawyer out of a larger body of documents that themselves are not protected from disclosure – on the theory that the lawyer’s selection of certain documents reflects the lawyer’s opinion.
Some courts point to this doctrine in protecting from disclosure the identity of specific documents the lawyer selected to review with a witness before a deposition. However, one recent decision took the opposite approach. Pepsi-Cola Bottling Company of Pittsburgh, Inc. v. PEPSICO, Inc., No. 01-2009-KHV, 2001 U.S. Dist. LEXIS 19935 (D. Kan. Nov. 8, 2001)
Lawyers should check ahead of time to determine if the pertinent court will or will not protect from disclosure the identity of specific documents the lawyer uses when preparing a witness for deposition.