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

October 25, 2017

Last week’s Privilege Point explained that on its face the federal work product rule (and most states’ parallel rules) provide heightened opinion work product protection to any client representative’s opinions — not just lawyers’ opinions.

Some courts expand work product protection by ignoring rather than relying on rule language.  In Under Seal 1 v. United States (In re Grand Jury Subpoena), 870 F.3d 312, 317 (4th Cir. 2017), the Fourth Circuit extended opinion work product protection to a “lawyer’s recollection of a witness interview” – finding that the protection could apply to such opinions “whether memorialized in writing or retained in the recesses of an attorney’s mind.”  On its face, the work product doctrine protects only “documents and tangible things.”  Fed. R. Civ. P. 26(b)(3)(A).  In fact, the rule itself is entitled “Documents and Tangible Things.”  In Smyth v. Williamson, No. 2:13-cv-2553-DCN, 2014 U.S. Dist. LEXIS 64777 (D.S.C. May 12, 2014), for instance, the court allowed plaintiff to depose an insurance company representative about his conversation with the insured.  The court rejected defendant’s work product claim, bluntly holding that “Rule 26 does not apply to the current motion” – because plaintiff “is not seeking discovery of any [documents or tangible] items but is rather seeking to depose a State Farm representative.”  Id. at *8-9.

Fortunately for defendants, most courts extend work product protection to intangible work product such as deposition testimony — either ignoring the rule language or relying on a shadowy parallel common law work product protection.

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