Work product and the attorney's selection process: spoon feeding the opposition or preserving the adversary system?

• Author: Breitner, Paul D.

Litigating similar cases with similar issues over many years can often transform the "art of discovery" into formulaic or rote methods of propounding, questioning, and searching as well as responding to discovery requests. For example, the following interrogatory (in so many words) is almost universally encountered (and all too often accepted) in all forms of litigation: "List each and every document, memorandum or correspondence of any kind that supports the allegations set forth in Count II of your Counterclaim."

The same language is also commonly contained within a typical request for production: "Produce each and every document, memorandum or correspondence of any kind that supports the allegations set forth in Count II of your Counterclaim."

Or the omnibus question at a deposition: "Please tell me all of the facts which you contend support the 12th Affirmative Defense to this Complaint." More often than not practitioners encounter such interrogatories, requests, and/or questions and unhesitatingly fall into spending their time culling records and documents as best they can to respond adequately and in good faith to the discovery request being made. In doing so without objection, however, are we being too generous? Are we giving up our work product? This article explores this very issue, particularly in light of the Florida Supreme Court's recent decision in Northup v. Herbert W. Acken, M.D., P.A., 865 So. 2d 1267 (Fla. 2004), which appears to somewhat alter the playing field as well as the rules of engagement.

The work product doctrine, now memorialized in both the Federal Rules of Civil Procedure and Florida Rules of Civil Procedure, has its foundation in the U.S. Supreme Court's decision in Hickman v. Taylor, 329 U.S. 495 (1947).

Liberal Discovery Versus Need for Production

With the codification of liberal discovery by the adoption of the Federal Rules of Civil Procedure in 1937 came the need to protect materials prepared by attorneys in anticipation of litigation or trial. If an opponent were permitted to discover and gain access to these attorney-generated materials, the public policy underlying our adversary system could very well be compromised. Commenting on those federal rules, the district court in McCarthy v. Palmer, 29 F. Supp. 585 (F.D.N.Y. 1939), (1) stated:

While the Rules of Civil Procedure were designed to permit liberal examination and discovery, they were not intended to be made the vehicle through which one litigant could make use of his opponent's preparation of his case. To use them in such manner would penalize the diligent and place a premium on laziness.

The Hickman Court underscored the need for protection of "work product," but, more importantly, and perhaps for the first time, extended the doctrine to unwarranted inquiries into the files and mental impressions, and hence opinions, of an attorney, dealing in that case with a discovery request for information and memoranda summarizing oral interviews of witnesses, i.e., the attorney's recollection of what certain witnesses said in conversations the attorney had had with them. The Supreme Court concluded that if such discovery were to be permitted, "[a]n attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect in the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." (2) Moreover, the Hickman Court clearly explained that "immunity from discovery was necessary to preserve the privacy of an attorney's preparation and ensure the proper functioning of the adversarial system," and that "proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference." (3)

Federal Rule 26(b)(3) and the Federal Courts

Traditionally, for the "work product" privilege to apply, the documents requested must have been generated in anticipation of litigation and not simply in the ordinary course of business. Federal Rule 26(b)(3), under very limited circumstances, does, however, allow discovery of nonprivileged documents, which have been prepared in anticipation of litigation, relating to a party's claim or defense, if the requesting party can show 1) substantial need in the preparation of the requesting party's case, and 2) undue hardship in independently obtaining the substantial equivalent of the materials by other means. However, the last sentence of the subsection states that in ordering the discovery of such materials when the required showing has been made, the court shall "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney." This obviously applies to file memoranda, case analyses, written strategies, etc. Thus, Rule 26(b)(3) recognizes the distinction between "ordinary" and "opinion" work product first articulated in Hickman.

But what about documents not prepared in anticipation of trial but generated in the ordinary course of business, otherwise admissible and nonprivileged as single units, the "assembly," "culling," and "choice" of which can only be said to occur as a result of an attorney's thought processes? Is not the requesting party in such instance, by placing the burden on an adversary's attorney to assemble and produce "each and every document in support of Count II" utilizing (if not invading) opposing counsel's thought processes and legal theories? Should not the requesting party's counsel be required to, by personal skill, knowledge, and reasoning, request the production of documents within general and specific categories, and, upon receipt and review of same, use his or her own thought processes to determine whether they constitute support for Count II?

Federal jurisprudence since Hickman has repeatedly applied and expanded the work product doctrine. Numerous cases stand for the proposition that in selecting and ordering a few documents out of thousands counsel could not help but reveal important aspects of his or her understanding of the case, and that in a case involving extensive document discovery the process of selection and distillation is more critical than pure legal research. (4) The imperative has been to protect not only the privacy of an attorney's thought process, but to ensure that each side relies on its own wit in preparing their respective cases. (5) It has...