Under Fed. R. Civ. P. 26(b)(3)(B), a court concluding that an adversary can overcome a litigant’s work product protection “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Some lawyers mistakenly believe that only a lawyer’s opinion deserves this protection, despite the rule’s literal language to the contrary.
Perhaps more importantly, courts disagree about the level of protection such opinion work product deserves. Many courts find opinion work product absolutely protected. Fisher v. Kohl’s Dep’t Stores, Inc., No. 2:11-cv-3396 JAM GGH, 2012 U.S. Dist. LEXIS 86989 (E.D. Cal. June 22, 2012). Other courts provide a lesser level of protection. In Smith v. Coulombe, Case No. 2:11-cv-531-SU, 2013 U.S. Dist. LEXIS 14783, at *10 (D. Or. Feb. 4, 2013), the court used the phrase “special protections.” A few weeks later, the District of New Hampshire indicated that opinion work product only “qualifies for ‘greater protection’ than so-called fact work-product.” Walker v. N.H. Admin. Office of Courts, Civ. No. 11-cv-421-PB, 2013 U.S. Dist. LEXIS 24506, at *9-10 (D.N.H. Feb. 22, 2013) (citation omitted).
In practice, these differing approaches often make no difference – because opinion work product that is communicated to the client probably also deserves the separate (and absolute) attorney-client privilege protection.