Do the Federal Rules Protect “Intangible” Work Product?

May 30, 2007

Although on its face Fed. R. Civ. P. 26(b)(3) protects only “documents and tangible things,” most courts extend the work product protection to “intangible” work product.

In Lake Shore Radiator, Inc. v. Radiator Express Warehouse, No. 3:05-cv-1232-J-12MCR, 2007 U.S. Dist. LEXIS 19028, at *14 (M.D. Fla. Mar. 19, 2007), the court held that the work product protection extended to “oral communications” between a party’s investigator and potential witnesses. The court even found that the absolute opinion work product protection covered “the specific questions asked by a party’s agent during the investigation” — because disclosing the investigator’s questions to the witnesses would allow the adversary “to discover the theory of a case” and “invade[] the trial preparation process.” Id. at *16.

Not all courts take this expansive a view of the work product doctrine, but litigants should be prepared to seek as much protection as the pertinent court allows.