Courts Disagree About Basic Work Product Principles: Part I

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...