Under what is called the Sporck doctrine, most courts protect as opinion work product material or information that is not intrinsically protected, but the disclosure of which would reveal a lawyer’s thought process. For instance, courts usually protect a lawyer’s selection of specific documents (out of a larger group of documents produced by an adversary) to review with her client before the client’s deposition — the adversary’s documents obviously do not deserve privilege protection, but the lawyer’s selection of certain documents might reflect the lawyer’s strategy.
In Evergreen Trading, LLC. v. United States, 80 Fed. Cl. 122, 137 (Fed. Cl. 2007), plaintiffs objected to producing documents to the United States “because they contain a supposedly unique, sequential numbering system that plaintiffs’ counsel asserts it employed in organizing the documents in question.” The Federal Claims Court agreed “that the numbering system itself could reveal aspects of plaintiffs’ counsel’s understanding of the case and thus constitutes work product for which defendant [United States] has made no showing whatsoever of necessity.” Id. The court therefore allowed plaintiffs to redact the numbers before producing them to the United States.
Not every court would take this broad a view of the Sporck doctrine, but lawyers should be looking for opportunities to present similar arguments.