Courts Use Rule Language and Common Sense to Expand Work Product Protection: Part I

October 18, 2017

Unlike the common law-dominated attorney-client privilege which developed organically in each state, work product protection comes from court rules.  One might think that this would simplify courts’ application of that protection, but it does not.  Courts taking an expansive view sometimes rely on little-noticed rule language and sometimes essentially ignore rule language.

In Hobart Corp. v. Dayton Power & Light Co., Case No. 3:13-cv-115, 2017 U.S. Dist. LEXIS 136682 (S.D. Ohio Aug. 24, 2017), the court extended the heightened opinion work product protection to a paralegal’s witness interview notes.  This correctly applied the opinion work product provision of Fed. R. Civ. P. 26(b)(3)(B) – which flatly indicates that courts “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation” (emphases added).  On its face, the rule thus provides such heightened protection to the opinions of nonlawyer client representatives such as paralegals, accountants, consultants, etc. 

Although the work product rule broadly defines opinion work product protection, courts disagree about that protection’s strength.  Some courts absolutely protect such opinion work product, while some provide only a somewhat higher level of protection than they give fact work product.  Next week’s Privilege Point will discuss another court’s expansive work product doctrine interpretation – which ignored rather than relied on Rule 26’s language.