Unlike the attorney-client privilege, the federal rules and most states recognize two kinds of work product protection: (1) fact work product, which the adversary can obtain if it has “substantial need” for the work product and cannot obtain the “substantial equivalent” without “undue hardship,” and (2) opinion work product, which is absolutely or nearly absolutely protected.
In Wedekind v. McDonogh School, Inc., the court applied the widely adopted distinction between: (1) fact work product-protected “interview notes,” which were ” ‘substantially verbatim’ near-transcriptions of the questions and answers from the witness interviews,” and (2) opinion work product-protected witness “interview summaries, which contain information organized and edited by the . . . investigators.” Civ. A. Nos. SAG-24-1065, SAG-25-0795, -01551 & -01552, 2026 U.S. Dist. LEXIS 40434, at *13-15 (D. Md. Feb. 27, 2026).
This general guidance makes sense but requires refinement. For instance, a verbatim witness interview transcript presumably deserves only fact work product protection if it began with a single lawyer question such as, “What did you see that day?” But a verbatim witness interview transcript undoubtedly deserves opinion work product protection if the lawyer asked hundreds of focused questions clearly reflecting the lawyer’s thoughts about important issues.