Ironically, federal courts disagree more about work product principles enunciated in a single federal rule than they do about the organically developed attorney-client privilege protection. This can create enormous uncertainty for litigants, who usually do not know in advance where they might face litigation, and therefore will not know what work product approach will apply.
Under Fed. R. Civ. P. 26(b)(3)(B), a court ordering disclosure of work product “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation” (emphasis added). In Republic of Ecuador v. MacKay, the court described opinion work product as “‘virtually undiscoverable.'” 742 F.3d 860, 869 n.3 (9th Cir. 2014) (citation omitted). Less than two weeks later, the Tenth Circuit applied a greater degree of protection — bluntly stating that “[o]pinion work product is absolutely privileged.” Nevada v. J-M Mfg. Co., No. 13-1104, 2014 U.S. App. LEXIS 2532, at *7 n.2 (10thCir. Feb. 11, 2014). Less than two weeks after that, a district court applied a “near absolute protection” standard. Roa v. Tetrick, Case No. 1:13-cv-379, 2014 U.S. Dist. LEXIS 24619, at *6 (S.D. Ohio Feb. 24, 2014).
Perhaps there is little practical difference between a “virtually undiscoverable,” “near absolute” and “absolutely privileged” standard, but one might expect courts to articulate the same approach. Next week’s Privilege Point will provide another example of courts’ disagreement about how to apply a single sentence in the federal rules.