Chapter 42 Facts Reflecting the Lawyer’s Opinion

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

Chapter 42

FACTS REFLECTING THE LAWYER'S OPINION

42.1 INTRODUCTION

The opinion work product doctrine protection can sometimes extend to the identity of intrinsically non-protected documents, witnesses, or facts.

• Courts often call this the Sporck doctrine.

42.2 INTRINSICALLY UNPROTECTED DOCUMENTS REFLECTING OPINION

The Sporck doctrine contrasts with the opinion work product protection's applicability to contemporaneous documents.

• The former focuses on the identity of items that do not themselves deserve any intrinsic privilege or work product protection.

42.3 CLIENT REPRESENTATIVES

Courts disagree about the type of client representatives whose selection can deserve opinion work product protection.

• This reflects the same debate involving traditional opinion work product protection. ¹

42.4 HISTORY OF THE SPORCK DOCTRINE

Surprisingly, attorney-client privilege jurisprudence never developed a parallel to the Sporck doctrine. [42.401]

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Until very recently, few if any courts extended attorney-client privilege protection to clients' or lawyers' selection of historical documents or other intrinsically non-protected items. [42.402]

• A few recent cases have extended such privilege protection to email strings forwarded to lawyers, even though such strings' earlier parts do not themselves deserve privilege protection. ²

The Sporck doctrine comes from a series of cases culminating in a 1984 Third Circuit case. ³ [42.403]

• That case involved extension of opinion work product protection to historical documents a lawyer used in preparing a client to be deposed.

Not every court adopts the Sporck doctrine. [42.404]

• Some courts explicitly reject it, while some courts question it.

• If anything, the trend seems to be running against a broad application of the Sporck doctrine.

42.5 GENERAL RULES: INTRODUCTION

Courts adopting the Sporck doctrine recognize several prerequisites to its application.

• Courts apply the doctrine most frequently to lawyers' or other client representatives' selection of documents, witnesses, and helpful facts.

42.6 EQUAL AVAILABILITY TO THE ADVERSARY

First, adversaries must have equal access to the pertinent universe of documents, witnesses, facts, etc.

• For instance, litigants probably cannot claim Sporck protection for the identity of documents they select for copying from a

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third party's collection, unless the litigants establish that adversaries can search the same collection.

42.7 SELECTION AS REFLECTING PROTECTED OPINION

Second, client representatives' selection must reflect their opinion.

• For instance, lawyers copying 10,000 out of 15,000 documents in a third party's collection generally cannot claim Sporck protection—because such wholesale copying does not reflect any meaningful opinion.

• On the other hand, lawyers presumably can seek Sporck protection for the identity of 100 documents they copy out of a third party's collection of 15,000 documents.

42.8 TIMING OF DISCLOSURE

Third, client representatives usually cannot withhold forever the identity of such documents, witnesses, facts, etc.

• At some point, such representatives normally must disclose their identity, during pre-trial discovery or court-mandated disclosures. ⁴

42.9 LAWYERS' SELECTION OF DOCUMENTS

The Sporck doctrine applies most commonly to lawyers' selection of documents. [42.901]

• One court found that the Sporck doctrine protected a lawyer's entire file. Most courts do not go that far.

Courts disagree about the Sporck doctrine's applicability to lawyers' selection of certain client documents as important, or useful in preparing witnesses to testify. [42.902]

• Some

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