What’s the Deal With “Intangible” Work Product? Part I

April 3, 2024

The “work product” doctrine provides an entirely separate protection from the attorney-client privilege. Unlike the privilege, the work product doctrine is not ancient, normally not absolute, and not fragile. The many complicated issues involving this doctrine start with its completely inappropriate name. Canadians wisely call their parallel protection the “litigation privilege.”

One of the key confusing aspects comes from the single Fed. R. Civ. P. 26(3)(A) sentence itself. The Southern District of New York correctly pointed to the rule’s language, explaining that, “[a] claim of work product has three elements” — the first of which is that “[t]he material must … be a document or a tangible thing” (emphasis added). Seawolf Tankers Inc. v. Laurel Shipping LLC, No. 1:20-cv-05198 (JHR) (SDA), 2024 U.S. Dist. LEXIS 24562, at *10 (S.D.N.Y. Feb. 9, 2024). But just two days earlier, another federal court explained that “the work-product doctrine protects from discovery those documents, things, and mental impressions of a party or its representative.” Tingey v. Midwest Office, Inc., Case No. 1:22-cv-00145-TC-JCB, 2024 U.S. Dist. LEXIS 22445, at *6 (D. Utah Feb. 7, 2024) (emphasis added).

Lawyers often welcome this more expansive view — but where does it come from? Next week’s Privilege Point will explain the apparent confusion.