Last week’s Privilege Point dealt with the debate among courts about opinion work product protection for a lawyer’s selection of certain documents to show witnesses before they testify. Courts adopting the majority view protect the lawyer’s selection, but only if the other side has equal access to the collection from which the lawyer picks the documents to review with the witness.

As explained last week, Magistrate Judge Dolinger applied the Sporck doctrine to a lawyer’s deposition preparation in Briese Lichttechnik Vertriebs GmbH v. Langton, No. 09 Civ. 9790 (LTS) (MHD), 2011 U.S. Dist. LEXIS 7333 (S.D.N.Y. Jan. 24, 2011). However, Judge Dolinger then noted that “[t]he analysis would differ if the attorney had shown the witness privileged documents” – which therefore had not been available to the other side. Id. at *22 n.6. In that case, Federal Rule of Evidence 612 would “presumably” allow the deposing lawyer to ask whether the privileged (and thus non-produced) documents “had refreshed the witness’s recollection, in which case the document would be producible notwithstanding its otherwise privileged status.” Id.

It is worth noting the irony of this majority rule. An adversary usually cannot learn the identity of non-privileged documents that a lawyer shows witnesses before they testify. But an adversary often can learn the identity of (and even obtain access to) privileged documents that a lawyer shows witnesses before they testify.

Many courts have adopted what is called the Sporck doctrine, which can protect as opinion work product a lawyer’s selection of specific documents out of a large universe of documents that do not themselves deserve intrinsic work product or privilege protection. These courts reason that the lawyer’s selection process reflects his or her mental impressions or strategy.

Not all courts take this approach. In Briese Lichttechnik Vertriebs GmbH v. Langton, No. 09 Civ. 9790 (LTS) (MDH), 2011 U.S. Dist. LEXIS 7333, at *22 (S.D.N.Y. Jan. 24, 2011), Magistrate Judge Dollinger took the majority view – holding that “[i]n view of plaintiffs’ representation that all documents reviewed by the witnesses had been produced — which amounts as well to a representation that the witnesses were not shown otherwise privileged documents – defendants have no right to an identification of which documents the attorneys showed the witnesses.” On the very next day, another court took exactly the opposite position. In Cooper v. Old Dominion Freight Line, Inc., Case No. 09-CV-2441 JAR, 2011 U.S. Dist. LEXIS 6755, at *16 (D. Kan. Jan. 25, 2011), the court noted that it “has previously held in the context of an inquiry into what documents a deponent reviewed prior to a deposition that the selection and grouping of information does not transform discoverable documents into work product.”

Courts adopting the Sporck doctrine in this context require that the collection of documents be equally available to the adversary. This is the subject of next week’s Privilege Point.