Chapter 46 Overcoming Opinion Work Product Protection

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

Chapter 46

OVERCOMING OPINION WORK PRODUCT PROTECTION

46.1 INTRODUCTION

Courts agree that opinion work product deserves a higher level of protection than fact work product, but disagree on the standard.

46.2 FEDERAL AND STATE RULES

Under the federal work product rule and states' parallel rules, courts "must protect" opinion work product even if they order fact work product produced. ¹

46.3 DEGREE OF PROTECTION

In another example of courts' surprisingly varied application of a single federal rule phrase, they disagree about the exact level of opinion work product protection. [46.301]

Some courts provide opinion work product absolute protection. [46.302]

VA The Eastern District of Virginia, ² the Western District of Virginia, ³ and Virginia circuit courts ⁴ held that opinion work product deserved absolute protection.

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Some courts use the oddly phrased "almost absolute" protection. [46.303]

VA The Eastern District of Virginia ⁵ and the Western District of Virginia ⁶ used the "nearly absolute" standard.

Some courts provide only...