Federal Court Applies the Work Product Doctrine to Background Facts

April 13, 2011

Most courts find both the attorney-client privilege and the work product doctrine inapplicable to background facts such as the identity of lawyers working on a case, when the lawyers and the clients met, etc. To the extent that such information is relevant, most courts describe it as historical fact that does not deserve any protection.

However, some courts are more protective. In United States v. Capital Tax Corp., No. 04 C 4138, 2011 U.S. Dist. LEXIS 13242, at *23 (N.D. Ill. Feb. 10, 2011), a CERCLA defendant asked in an interrogatory for the identity and role of each government lawyer who participated “in deciding who to sue and when.” The court found that the interrogatories sought protected work product – explaining that “[a]lthough [the defendant] has carefully framed those requests as inquiries into mere identities and dates, such information is relevant only to the extent that it serves as a crowbar to pry open a window into the strategic thought process of the government’s attorneys.” Id.

Adversaries usually can obtain discovery of a litigant’s contentions, the logistics of the litigant’s actions, etc. However, courts sometimes block such discovery, especially when aimed at the United States government.