Chapter 39 Work Product Content

• Library: A Virginia-Specific Summary Guide: Attorney-Client Privilege & Work Product Doctrine (Virginia CLE) (2016 Ed.)

Chapter 39

WORK PRODUCT CONTENT

39.1 INTRODUCTION

In contrast to the attorney-client privilege, the work product doctrine focuses primarily on context rather than content.

• However, some courts also address work product's content—often disagreeing about key issues.

39.2 INTANGIBLE WORK PRODUCT

Courts disagree about whether the work product doctrine can protect intangible (non-documentary) work product. [39.201]

• Examples include: oral communication; unwritten mental impressions.

The debate arises because the work product rule explicitly refers only to "documents and tangible things." [39.202]

• However, the common law work product doctrine articulated in Hickman v. Taylor¹ did not seem limited to documents and tangible things.

Many courts extend work product protection to intangible work product. [39.203]

	•	These courts either point to the parallel federal common law work product protection or just ignore the rule's explicit language.
VA	The Eastern District of Virginia, 2 the Western District of Virginia, 3 and a Virginia circuit court 4 extended work product protection to intangible work product.

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Federal Rule of Evidence 502 supports this extension.

• Although explicitly disclaiming any intent to change substantive work product law, Rule 502 defines "work-product protection" as applying to "tangible material ( or its intangible equivalent ) prepared in anticipation of litigation or for trial." ⁵

Some courts decline to protect intangible work product, relying on the rule's explicit language. [39.204]

• This narrow approach can have dramatic effects—such as allowing adversaries to depose litigants' investigators and asking what they did, what they observed, and what conclusions they reached.

It makes sense to extend work product protection to intangible work product. [39.205]

39.3 BACKGROUND FACTS ABOUT THE CREATION OF WORK PRODUCT

As with other issues, analyzing protection for background facts about work product's creation involves more subtle issues than in the privilege context. [39.301]

Some special rules provide protection for background facts. [39.302]

• For instance, a specific federal rule provides protection for information about specially-retained litigation-related non-testifying experts. ⁶

Some courts extend fact work product protection to background facts about the work product's creation. [39.303]

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Some courts even extend the higher level of opinion work product protection ⁷ to such background facts. [39.304]

These courts protect facts that might provide adversaries insight into litigants' opinions or strategy.

• Examples include whether a witness interview was recorded; role of lawyers in

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