Commercial Litigation and Arbitration

Absolute vs. Limited Protection for Opinion Work Product — Caselaw Split

From Monarch Fire Protection Dist. V. Freedom Consulting & Auditing Servs., Inc., 2009 U.S. Dist. LEXIS 60988 (E.D. Mo. July 16, 2009):

The work product doctrine "is broader than and distinct from the attorney-client privilege." In re Foster, 188 F.3d 1259, 1272 (10th Cir. 1999) (citing United States v. Nobles, 42 U.S. 225, 238 n.11 (1975)). The work product doctrine protects materials prepared by an attorney in anticipation of litigation from discovery. See Hickman v. Taylor, 329 U.S. 495, 511 (1947). This doctrine has since been codified in Fed. R. Civ. P. 26(b)(3)(B). Materials containing "the mental impressions, conclusions, opinions or legal theories" of counsel constitute opinion work product. Fed. R. Civ. P. 26(b)(3)(B).

The work product doctrine is broader than the attorney-client privilege because its protections extend beyond communications between the attorney and client. In re Columbia/HCA Healthcare, 293 F.3d 289, 304 (6th Cir. 2002). "[W]hile the mere showing of a voluntary disclosure to a third person will generally suffice to show waiver of the attorney-client privilege, it should not suffice in itself for waiver of the work product privilege." United States v. American Tel. and Tel. Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980). "Because the attorney-client privilege and work product doctrine have different standards for waiver, they must be considered separately." SNK Corp. of Am. v. Atlus Dream Entm't Co., 188 F.R.D. 566, 571 (N.D. Cal. 1999).

Some courts have found that opinion work product is "absolutely protected from discovery." Chase v. City of Portsmouth, 236 F.R.D. 263, 269 (E.D. Va. 2006) (citing Hickman, 329 U.S. at 510-13; In re Allen, 106 F.3d 582, 607 (4th Cir. 1997)). However, this stance is in the minority. The Eighth Circuit has stated that discovery of opinion work product is permitted "[i]n rare circumstances." Gundacker v. Unisys Corp., 151 F.3d 842, 847 (8th Cir. 1998) (citing Pittman v. Frazier, 129 F.3d 983, 988 (8th Cir. 1997)). The Eighth Circuit has not elaborated on what these circumstances may be, and as a result, the Court looks to decisions from other courts. The disclosure of opinion work product "to third parties does not, in and of itself, constitute a waiver of the privilege." Construction Industry Svcs. Corp. v. Hanover Ins. Co. , 206 F.R.D. 43, 49 (E.D.N.Y. 2001). As a result, the Court must carefully consider the facts related to these disclosures to determine if Mr. Barry's communications fall into the categories of disclosures that waive work product protection.

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