Chapter 41 Opinion Work Product

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

Chapter 41

OPINION WORK PRODUCT

41.1 INTRODUCTION

In addition to protecting fact work product, the work product doctrine can offer a higher level of protection to work product reflecting client representatives' opinion.

41.2 COMPARISON TO OTHER PROTECTIONS

If lawyers communicate opinion work product to clients, the communications might also deserve attorney-client privilege protection.

Clients and their lawyers should always consider the possible applicability of opinion work product protection, because it can offer a higher level of protection from discovery than that given fact work product. ¹

41.3 ERRONEOUS LIMITATION OF PROTECTION

Some courts erroneously seem to limit work product protection to work product that reflecting client representatives' opinion.

• There is a "no harm, no foul" aspect to such courts' incorrect articulation of the doctrine, as long as they apply it properly—but some courts deny any protection absent evidence that the documents reflect client representatives' opinion.

41.4 PARTICIPANTS WHOSE OPINION CAN BE PROTECTED

Many lawyers and even some judges misunderstand the identity of those who can create protected opinion work product. [41.401]

Lawyer-created opinion work product can clearly deserve the higher level of protection. [41.402]

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The federal work product rule and states' parallel rules explicitly indicate that "a party's attorney or other representative " can create opinion work product. ² [41.403]

• Some courts inexplicably ignore this language, and find that only lawyers can create such opinion work product.

On its face, the work product rule apparently does not extend the higher level opinion work product protection to a party's own opinion. [41.404]

• One court nevertheless extended opinion work product protection to a party's own opinion. ³

• This issue might become important if courts analyze what would otherwise be opinion work product created by a corporate employee—who could be considered either a "party" or a party's "representative." The former might not be capable of creating opinion work product, while the latter clearly can.

41.5 DOCUMENTS CONTAINING OPINION

The clearest example of opinion work product involves documents and sometimes intangible work product that contain client representatives' opinion. [41.501]

Courts have extended opinion work product protection to several types of such documents. [41.502]

• Examples include personal investigator's retainer letter and

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