Chapter 40 Fact Work Product

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

Chapter 40

FACT WORK PRODUCT

40.1 INTRODUCTION

Unlike the attorney-client privilege, work product doctrine protection comes in two types.

• The most common type of work product protection can cover a nearly endless variety of items, but only with a qualified immunity from discovery.

40.2 INTANGIBLE AND NON-SUBSTANTIVE WORK PRODUCT

Courts disagree about extending work product protection to intangible (non-documentary) work product, and to non-substantive work product such as communications scheduling meetings, etc. ¹

40.3 NAMING THE PROTECTION

Courts choose various names for this most common type of work product. Most courts use the term "fact" work product, while some courts use names such as "ordinary" or "non-opinion" work product.

40.4 HISTORICAL FACTS IN THE WORK PRODUCT CONTEXT

As with the attorney-client privilege, the work product doctrine does not protect historical facts.

However, as with other issues, this basic axiom applies in far more subtle ways in the work product context than in the attorney-client privilege context.

• Given the importance of timing in the work product context, adversaries might be precluded from seeking discovery of

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historical facts that litigants possess until later phases of discovery. 2

40.5 FACTS OBTAINED FROM OR GIVEN TO CLIENTS

Courts have addressed work product protection for historical facts and documents that lawyers obtain from or give to their clients. [40.501]

As with the attorney-client privilege, the work product doctrine does not protect historical facts from discovery simply because clients discuss those facts with their lawyers. [40.502]

• The work product doctrine might protect documents articulating such historical facts, but the facts themselves do not deserve protection—although adversaries must obtain those facts through other discovery means such as interrogatories or deposition questions.

Similarly, the work product doctrine normally does not protect facts that lawyers give their clients. [40.503]

• Although clients responding to discovery might be able to protect the source of such historical facts, clients generally cannot pretend that they don't know something that their lawyers told them.

The discoverability of facts that lawyers have not shared with their clients depends on adversaries' discovery mode. [40.504]

•	Clients being deposed can honestly claim ignorance of historical facts that lawyers have not shared with them, but usually must disclose even those facts in responding to interrogatories or requests for admissions, or when serving as Rule 30(b)(6) deponents.
VA	The Western District of Virginia 3 held that a client was not required to disclose facts a lawyer learned during witness interviews.

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As with the attorney-client privilege, the work product doctrine generally does not protect pre-existing documents that clients give their lawyers. [40.505]

Courts properly analyzing the work product doctrine protect even the factual portions of contemporaneous documents that lawyers give their clients, as long as those documents satisfy the doctrine's requirements. [40.506]

• As in the privilege context, some courts inexplicably find such portions discoverable.

The Sporck doctrine can protect the identity of pre-existing documents lawyers give their clients. ⁴ [40.507]

40.6 FACTS OBTAINED FROM OR GIVEN TO THIRD PARTIES

Courts have addressed work product protection for historical facts and documents clients or their lawyers obtain from or give to third parties. [40.601]

• Given the attorney-client privilege's general inapplicability to such communications, these issues rarely if ever arise in the privilege context.

The discoverability of facts that lawyers obtain from third parties largely depends on the adversaries' discovery mode. [40.602]

• Clients being deposed can honestly claim ignorance of historical facts their lawyers have not shared with them, but usually must disclose even those facts in responding to interrogatories or requests for admissions, or when serving as Rule 30(b)(6) deponents.

The Sporck doctrine can protect facts clients' lawyers give to third parties, if the lawyers' selection of those facts reflects the lawyers' opinions. ⁵ [40.603]

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As in other areas, the work product doctrine applies with complex subtlety to the discoverability of documents clients' lawyers obtain from third parties. [40.604]

• Litigants normally must produce responsive documents in their or their lawyers' possession, which presumably include documents their lawyers have obtained from third parties.

However, a lawyer who has combed through a third party's documents and selected certain ones might argue that the selection reflects her opinion—and that the adversary must search through the same documents rather than "piggyback" on the lawyer's work.

• On the other hand, an adversary could argue that such a process would be inappropriate—unless the litigant's lawyer guarantees that all of the third party's documents are still available for the adversary's review.

If such a third party selects certain documents to give the litigant's lawyer, the opinion work product doctrine can apply only if the third party can be considered the litigant's "representative."

The identity of documents lawyers provide to third parties might be...