What Level of Protection Does Opinion Work Product Deserve?

July 5, 2002

On its face, Fed. R. Civ. P. 26 directs courts to “protect against disclosure” a party’s, lawyer’s, or other representative’s opinion work product. However, courts disagree about the level of protection that opinion work product deserves.

Some courts hold that opinion work product is “absolutely” protected. See e.g., Christman v. Brauvin Realty Advisors, Inc., 185 F.R.D. 251, 256 (N.D. Ill. 1999). The recent decision in American Casualty Co. v. Healthcare Indemnity, Inc., 2002 U.S. Dist. LEXIS 952, at *23 (D. Kan. Jan. 21, 2002) provided less protection, finding that opinion work product can be discovered by an adversary if the “need for [the] material is compelling.” The Court noted that neither the United States Supreme Court nor the Tenth Circuit had determined the exact level of protection that opinion work product deserves.

Courts granting opinion work product absolute protection essentially elevate that protection to the equivalent of the attorney-client privilege immunity from discovery. However, litigants should become familiar with the exact level of protection that the pertinent court recognizes.