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

April 17, 2024

The last two Privilege Points (Part I and Part II) explained that the 1947 U.S. Supreme Court decision in Hickman v. Taylor, 329 U.S. 495 (1947), created a common law protection for litigation-related tangible and intangible things — which for some reason Fed. R. Civ. P. 26(b)(3) only partially codified. It seems ironic that a legal protection created only 77 years ago would spawn more uncertainty than the attorney-client privilege, which arose thousands of years ago and was more fully developed many hundreds of years ago in the English common law.

These are some but not all of the enormous variations lawyers must keep in mind when they litigate in their jurisdiction, and especially in some other jurisdiction: (1) “Whether the work product doctrine can protect documents created by those who are not parties to the litigation in which the work product protection issue arises, even if they reasonably anticipate litigation in that case or other cases”; (2) “What type of non-judicial proceedings count as ‘litigation’ for purposes of the work product doctrine protection?”; (3) “Whether a litigant must identify a ‘specific claim’ before successfully asserting the work product protection”; (4) “The type of ‘anticipation’ of litigation required — ranging from ‘imminent’ to ‘some possibility’ “; (5) “Whether the work product doctrine protects intangible work product, or only protects ‘documents and tangible things’ (as described in the rule itself)”; (6) “Whether work product protection is limited to documents with ‘legal content’ or can also protect non-substantive documents such as those setting up a meeting”; (7) “Whether the opinion work product protection extends to clients’ opinions, or is limited to client representatives’ opinions”; (8) “The degree of protection given to a lawyer’s selection of documents or facts that arguably reflect the lawyer’s opinion”; (9) “Duration of the work product doctrine protection”; (10) “The degree of protection given to opinion work product (absolute or simply higher than that provided to fact work product).” Thomas E. Spahn, “The Attorney‑Client Privilege and the Work Product Doctrine:  A Practitioner’s Guide” 1353-54 (Va. Law Found. 3d ed.) (2013).

One final warning for corporations that might want to claim work product protection: the date they claim to have reasonably anticipated litigation may be a date on which they must start preserving pertinent documents.