Are Lawyer-Created Computer Databases Protected as “Opinion” Work Product?

October 6, 2004

On its face, the standard work product rule provides higher protection for “opinion” work product than for regular factual work product, and some courts give absolute protection to opinion work product. All courts also recognize that a lawyer’s compilation of documents or facts sometimes reflect the lawyer’s opinion, thus triggering that higher protection.

In Portis v. City of Chicago, No. 02 C 3139, 2004 U.S. Dist. LEXIS 12640 (N.D. Ill. July 6, 2004), plaintiffs suing the City had spent $90,000 compiling an elaborate database of the City’s arrests, including such information as the arrestee’s name, booking number, date and time of arrest, ordinance, name of the arresting officer, etc. When the City sought the database in discovery, the plaintiffs argued that it amounted to “opinion” work product. The court found that disclosure of the computer database would not reveal the plaintiffs’ lawyers’ opinion about the case (noting, among other things, that “the database does not include attorneys’ evaluations of the data, or analysis of the strengths and weaknesses of the case in light of the data”). Id. at *9. Because the database was “neither selective nor revealing enough to constitute opinion work product,” the City could obtain access to the database if it could prove “substantial need” for the data and its inability to obtain the substantial equivalent without “undue hardship.” Id. at *10. The court held that the cost of compiling the data would be a “substantial hardship,” and ordered the plaintiffs to produce the database – although requiring the City to pay half of the plaintiffs’ cost of creating the database.

Litigants creating such databases should remember the sometimes dispositive distinction between factual work product and opinion work product – the more objective and general the data, the less protection it will receive.