Does the Work Product Doctrine Protect Intangible Work Product?

September 24, 2008

On its face, the work product rule only protects “documents and tangible things” that meet the doctrine’s standards. Most courts expand the protection to intangible work product in some circumstances. For instance, a private investigator’s memory of her observations normally will deserve work product protection — otherwise, the adversary could simply depose the investigator and ask “what did you find?”

Some courts nevertheless continue to take the narrow view. In Adams v. United States, Civ. No. 03-0049-E-BLW, 2008 U.S. Dist. LEXIS 53533 (D. Idaho July 3, 2008), the court assessed work product protection for deliberations of a corporation’s “core group” of employees assigned to investigate an incident. The court concluded that the “work product document is applicable only to documents and tangible things, such as memoranda or letters” — which means that the doctrine “provides no protection to [the corporation] for the verbal deliberations of core group members.” Id. at *12. The court likewise found the privilege inapplicable, because lawyers were not always involved in those deliberations.

On one level, it makes some sense to limit the work product protection to the rule’s literal language — but upon reflection, it makes more sense to protect the intangible equivalent of a protected work product document.