Under what is called the Sporck doctrine, courts sometimes extend opinion work product protection to a lawyer’s litigation-related selection of certain documents that are not intrinsically protected by the attorney client privilege or the work product doctrine. If the adversary has access to the same documents, courts often will protect the lawyer’s selection if it reflects the lawyer’s opinions or strategy.
Given the unusual nature of the Sporck doctrine, it should come as no surprise that courts take varying positions. In Rawat v. Navastar International Corp., Case No. 08 CV 4305, 2011 U.S. Dist. LEXIS 98432 (N.D. Ill. Sept. 1, 2011), the court found the Sporck doctrine inapplicable to a lawyer’s selection of certain documents related to the client’s affirmative defenses. Among other things, the court pointed to cases rejecting Sporck‘s reasoning “that the mere grouping of documents by counsel constitutes opinion work product.” Id. at *11. About three weeks later, another court found the Sporck doctrine applicable to copies of two documents a lawyer had “obtained . . . from a publicly available source.” Wollam v. Wright Med. Grp., Inc., Civ. A. No. 10-cv-03104-DME-BNB, 2011 U.S. Dist. LEXIS 106768, at *3 (D. Colo. Sept. 20, 2011). The court explained that “the compilation of materials by plaintiffs’ counsel through his personal research constitutes work product,” and that “[t]he volume of documents . . . is sufficiently small that their disclosure could reveal plaintiffs’ counsel’s mental processes, impressions, and opinions.” Id. at *6.
Courts have described the work product doctrine generally as “intensely practical,” and the Sporck doctrine has the same attribute. Companies and their lawyers should be looking for ways to apply its generous protection.