Concept

Intangible Work Product

Is the material protected work product?

Intangible Work Product

Read literally, Rule 26(b)(3)(A) protects only “documents and tangible things” prepared in anticipation of litigation or for trial, so a lawyer’s memory of a witness interview that never reached paper seems to fall outside it.¹ It does not. Hickman’s protection extends to both tangible and intangible work product,² and the rule, because it is limited to “documents and tangible things,” only partially codifies Hickman.³ Where a demand reaches work product that was never recorded, courts have concluded that the protection remains under the common law as Hickman set it out.⁴

Hickman itself involved both a public account and a private one. After a public hearing at which the four survivors were examined, with the testimony recorded and made available to all interested parties, the lawyer, Fortenbaugh, privately interviewed the survivors and took statements from them with an eye toward the anticipated litigation. He also interviewed others believed to know something about the accident and, in some cases, made memoranda of what they told him.⁵ The public record was open to everyone. The private interviews and memoranda were counsel’s own work, and they are the material Hickman protects.

Discovery is extremely broad under the federal rules and comparable state practice,⁶ so a gap in the rule’s text would matter. Counsel’s recollection of what witnesses said is the kind of material that breadth would otherwise reach, and the reason to withhold it is the same whether or not counsel wrote it down. One court put the reason this way: how a party, its counsel, and its agents choose to prepare the case, the efforts they undertake, and the people they interview are “not factual information to which an adversary is entitled.” Disclosure would teach the adversary which witnesses counsel valued more or less and how counsel was preparing for trial.⁷

Evidence Rule 502(g)(2) builds the same breadth into its definition. “Work-product protection” means the protection that applicable law provides for tangible material, or its intangible equivalent, prepared in anticipation of litigation or for trial.⁸ Three phrases do the work. “Applicable law” looks past the text of any one rule, so Hickman’s common law counts. “Intangible equivalent” names unwritten material expressly. “Prepared in anticipation of litigation or for trial” repeats the threshold, so intangible material receives no exemption from it. Rule 502 sits among the evidence rules but is in fact a discovery rule, so civil-procedure commentary belongs in any research on it.⁹

The Supreme Court applied the same logic to oral statements in Upjohn. It explained that the Hickman language it had just quoted did not apply to “oral statements made by witnesses . . . whether presently in the form of [the attorney’s] mental impressions or memoranda.” For that material the Court saw no showing of necessity that could justify production, leaving room only for a rare situation.¹⁰ Forcing an attorney to disclose notes and memoranda of witnesses’ oral statements is particularly disfavored, the Court added, because it tends to reveal the attorney’s mental processes. Justice Jackson’s Hickman concurrence explains why even a recital of facts reveals them: a lawyer’s version of a witness’s statement “would be his language, permeated with his inferences.”¹¹

The rule’s own text on mental impressions shows the same concern and also its limit. Rule 26 directs a court that orders discovery of protected materials on the required showing to protect against disclosure of an attorney’s mental impressions, conclusions, opinions, or legal theories. That language does not specifically mention memoranda based on witnesses’ oral statements. Yet Hickman stressed the danger that compelled disclosure of such memoranda would reveal the attorney’s mental processes, and the Court found it clear that this is the sort of material the drafters had in mind, citing the 1970 advisory committee notes.¹² The limit is that subdivision (b)(3)(B) applies only to “those materials,” the documents and tangible things in subdivision (A). It gives no general protection for mental impressions beyond those contained in documents and tangible things.¹³

When a question targets a lawyer’s unrecorded impressions, the protection therefore has to come from Hickman. In re Sealed Case did exactly that, protecting under Hickman deposition questions that would have required attorneys to testify about their mental impressions of their witness interviews.¹⁴

A grand jury case shows the protection working against a live demand. The lawyer, Duffy, had interviewed nonemployees of his client, and he was asked to produce or testify before the grand jury about his personal recollections and his summaries of those interviews. The record showed only his recollections and summarizing notes and memoranda. Nothing suggested that he held written statements prepared or signed by the interviewees, or verbatim quotations of what they said, and the court observed that the interviewees’ assertions of fact, not Duffy’s legal conclusions or opinions, were at issue.¹⁵ The court held that, on that record, the work-product doctrine excused Duffy from producing or testifying about his recollections and the summaries and conclusions he drew from the interviews, and it limited its holding to the facts before it.¹⁶ What the grand jury sought was counsel’s memory and summary rather than a witness’s own words, which is the material Upjohn treats as particularly disfavored to compel.

Hypothetical Illustration

In a contract suit, the plaintiff notices the deposition of the defendant’s outside lawyer and asks the lawyer to recount, interview by interview, what three company employees said about the delivery schedule and which of them seemed most reliable. The lawyer interviewed the employees to prepare the defense after the plaintiff’s demand letter arrived, and took notes in only one interview. Rule 26(b)(3)(A) covers that one set of notes. The questions about the other two interviews seek the lawyer’s unwritten recollection and evaluation, so the objection rests on Hickman’s common law, and a court would likely sustain it because the answers would expose the lawyer’s selection and judgment. The plaintiff is not left empty-handed, since what the employees themselves know about the delivery schedule is a separate matter taken up in the next reading.

Protection for intangible material still turns on purpose. In a grand jury appeal that affirmed enforcement of a subpoena, the court acknowledged that the attorney’s “legal theories, research, and fact material gathered” could be considered intangible work product. It held the attorney’s recollections and research unprotected because they were not made in preparation for possible litigation. When the clients consulted the attorney in April 2008, no litigation was on the horizon. The investigation began nearly two years later, and the consultation took place in the ordinary course of a business transaction.¹⁷ The contrast with the interview cases is the purpose of the work when it was done. A lawyer who interviews witnesses to prepare against a claim already forming produces work product, whether or not anything is written down. A lawyer who advises on a business transaction does not, however much legal thought the advice required, and a later investigation cannot change why the consultation happened.

Exam Analysis Steps

Because one threshold governs written and unwritten material alike, a request or question aimed at counsel’s memory is best run through a short sequence:

Identify the target. If it is a document or tangible thing, Rule 26(b)(3)(A) supplies the protection. If it is counsel’s unrecorded recollection or evaluation, the protection comes from Hickman’s common law and from the intangible equivalent that Evidence Rule 502(g)(2) describes.
Apply the anticipation requirement to the lawyer’s work. Ask whether it was done because of a dispute or anticipated proceeding, or in the ordinary course of a business transaction.
Ask what the question seeks. A request for counsel’s selection, summary, or evaluation of what witnesses said engages the mental-process concern. A request for the underlying facts does not, and those facts remain discoverable from the party.
Treat counsel’s mental impressions as the part of the protected zone that receives the strongest shelter, since courts guard against compelled disclosure of an attorney’s mental processes.

Intangible Work Product

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