Concept
Opinion Work Product
Can the protection be overcome? Substantial need and opinion work product
Opinion Work Product
Rule 26(b)(3)(B) adds a second layer of protection that survives a successful showing under Rule 26(b)(3)(A). If the court orders discovery of work-product materials, it “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.”1 The command operates only after an order of discovery, so the requester has already shown the substantial need and undue hardship that subsection (A)(ii) demands.2 The two subsections therefore do different jobs: (A) decides whether the bar lifts, and (B) tells the court what must stay behind once it has.
The separate tier follows from what the (A)(ii) showing measures. Both prongs ask whether the requester can obtain the facts. A requester who proves that the only eyewitness has died shows why it needs the recorded account of what that witness saw, because courts often find undue hardship when a witness is dead, beyond the court’s reach, hostile, or memory-impaired.3 The showing does not explain why the requester should also read what counsel thought the account was worth. Hickman answered in terms of incentives: if lawyers’ evaluations could be demanded, “much of what is now put down in writing would remain unwritten,” and “[a]n attorney’s thoughts, heretofore inviolate, would not be his own.”4
One file can therefore hold material at two levels. A record of what a witness said may be reachable on a sufficient showing, while the portions of the same record that disclose counsel’s evaluation stay behind the shield. The target of a motion to compel can be a lawyer’s memorandum, as in a Delaware trust case where beneficiaries pressing a surcharge claim against the trustees moved to compel a legal memorandum prepared in 1973.5 This unit examines the shield’s text and reach, how strong it is, the situations in which courts have nonetheless allowed access, and what survives when a client uses a lawyer to commit fraud.
The Mandatory Shield
The operative text of Rule 26(b)(3)(B) is a single sentence: “If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.”6 The phrase “those materials” points back to the documents and tangible things that subsection (A) makes reachable, so the duty arises only after the requester has shown substantial need and undue hardship. The Third Circuit described the rule in that sequence: even a requester who has made the showing cannot reach the mental impressions, conclusions, opinions, or legal theories of an attorney and the attorney’s agents.7 The showing that opened the door under (A)(ii) does not carry the requester through (B), because it speaks to access to facts and says nothing about why the requester should see counsel’s reasoning.
The verb is must, and it takes the protection out of the court’s discretion. A court that orders production of a document mixing facts and evaluation must find a way to deliver the facts without delivering the thinking. It may order production of the portions for which the requester has made an adequate showing while keeping its authority to protect the mental impressions, strategies, and analyses of the party or its representative.8 The shield serves the adversary system: even if discovery is ordered, the court must protect opinion work product.9 A later section takes up the tools courts use to separate fact from opinion.
Nor do the expert-discovery rules displace the shield. Rule 26(b)(3) opens by making work product subject to Rule 26(b)(4), so trial-preparation material that an expert prepared is discoverable only under the special requirements for expert discovery. That opening phrase does not limit the sentence restricting disclosure of work product that contains mental impressions and legal theories.10 A later section returns to expert materials.
Facts and opinions differ in how an opponent can obtain them. Where work product consists of witness statements, the “other means” are interviews with the witnesses themselves, and a requester who can conduct them gets nothing from the court.11 Counsel’s evaluation has no such substitute, and a note-taker’s choices reveal it. Compelled disclosure of notes and memoranda of witnesses’ oral statements is particularly disfavored because it tends to reveal the attorney’s mental processes, through “what he saw fit to write down regarding witnesses’ remarks.”12
These differences produce the two-tier picture that organizes the rest of this chapter. Courts have carried Hickman’s distinction between opinion work product and other work product forward, and they sometimes call the latter “fact work product.”13 Fact work product, also called ordinary work product, is tangible material that includes facts but not an attorney’s mental impressions. Opinion work product, also called core work product, includes or reflects an attorney’s thoughts, such as impressions, theories, and conclusions.14 The Third Circuit describes Rule 26(b)(3) as establishing exactly these two tiers, with opinion work product receiving the greater protection.15 Other courts state the consequence the same way: the exception in (A)(ii) opens factual or non-opinion work product, and the court must protect the opinion material.16 The line between the tiers is not always distinct, especially when an attorney’s opinion may itself be factual work product, a problem that later sections take up.17
Upjohn Co. v. United States shows the second tier at work. The Government sought notes and memoranda of company lawyers’ oral interviews with employees and stressed that the interviewees were scattered across the globe and that the company had forbidden employees to answer questions it considered irrelevant.18 The Court replied that the Hickman language the Government invoked did not reach “oral statements made by witnesses . . . whether presently in the form of [the attorney’s] mental impressions or memoranda.”19 Work product of that kind, the Court added, cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship, and a far stronger showing would be required.20 The next subsection asks how much stronger, and whether any showing could suffice.
A standard illustration puts both tiers in one file. A witness to an accident gives a statement, and the defendant’s lawyer reads it and writes a memo to the file: “X appears to be lying for the following three reasons.” The statement is ordinary work product, and a plaintiff who can interview or depose the witness will probably fail to overcome its qualified protection.21 The memo records the lawyer’s evaluation, so the court must protect it even if the plaintiff has reached the statement.22
The shield is not limited to lawyers. Subsection (B) protects the thinking of a party’s attorney or other representative, and the work-product bar itself reaches materials prepared by or for a party or its attorney, consultant, surety, indemnitor, insurer, or agent.23 The Third Circuit relied on the Supreme Court’s observation that attorneys must often depend on investigators and other agents to compile materials for trial, so the doctrine has to protect what those agents prepare as well as what the attorney prepares.24 Delegation explains the rule. If delegated thinking were reachable, a lawyer could shelter only the judgment the lawyer wrote personally, and an opponent could obtain the identical judgment from the investigator’s report. A party’s insurer, a consultant, and a private investigator hired by counsel all count as representatives.25
Status as a representative settles whose thinking is protected, but a document’s content settles whether any thinking appears in it, and a document that records only facts belongs to the first tier.26 The process of preparing a document can carry protection that the finished document lacks. In Coburn Group v. Whitecap Advisors LLC, the court recognized that courts generally protect information relevant to the evolution of an affidavit, including communications with counsel about it, prior drafts, and notes counsel made while drafting it, even when they would deny protection to the signed affidavit itself.27
Rule 26(b)(3) speaks only to documents and tangible things, and subsection (B) inherits that limit, yet Hickman itself still covers thoughts never put on paper. Work-product protection reaches both tangible and intangible work product, and intangible work product, which includes counsel’s thoughts and recollections, is often eligible for the special protection given to opinion work product.28 The leading treatise puts the point this way: Rule 26(b)(3) itself protects only documents and tangible things and does not bar discovery of facts a party learned from documents that are not themselves discoverable, but Hickman continues to protect work product that is not embodied in tangible form.29
The first question seeks a fact, and Rule 26(b)(3) does not bar discovery of facts a party may have learned from documents that are not themselves discoverable, so the party must answer even though its lawyer learned the fact while preparing for trial.30 The second asks for counsel’s evaluation. No document records it, so the text of Rule 26(b)(3) does not literally apply, but courts protect such impressions under Hickman itself. The D.C. Circuit did so in In re Sealed Case, where deposition questions would have required attorney testimony about mental impressions formed in witness interviews.31
Absolute or Near-Absolute?
Rule 26(b)(3)(B) says the court “must protect against disclosure” of counsel’s mental impressions, conclusions, opinions, and legal theories once it orders discovery of work product.33 It does not say whether any showing, however strong, could ever justify disclosing them. Courts have split. Some treat the protection as absolute, so that nothing a requester proves can reach counsel’s opinions. Others treat it as near-absolute, so that the opinions yield only to a showing far stronger than the substantial need and undue hardship that unlock fact work product.34 The Supreme Court has not chosen between these positions, which is why the shield travels under several labels: absolute, near-absolute, and reachable only in rare and extraordinary circumstances.
The Court’s own language leaves the door ajar without opening it. In Hickman the material was a lawyer’s memoranda and recollections of what witnesses had told him. The Court said it did not believe that any showing of necessity could be made “under the circumstances of this case” to justify production, and it added that if there should be a “rare situation” justifying production, the petitioner’s case was not of that type.35 Both phrases are tied to the facts, so Hickman decided the request before it and left open whether any other request could succeed.36
Upjohn then took up the question more directly. The Government sought notes and memoranda of company lawyers’ interviews with employees, and the magistrate had applied the ordinary test of substantial need and undue hardship. The Court held that standard too lenient, because work product revealing attorneys’ mental processes “cannot be disclosed simply on a showing of substantial need and inability to obtain the equivalent without undue hardship.”37 It then reserved the larger question. The Court was “not prepared at this juncture to say that such material is always protected,” but it said that “a far stronger showing of necessity and unavailability by other means” would be needed to compel disclosure.38
Upjohn also shows where the two camps came from. Some courts had held that no showing of necessity can overcome protection of work product based on oral statements from witnesses, and others, while declining an absolute rule, gave such material special protection.39 The Fourth Circuit adopted the absolute position, holding that opinion work product is never discoverable.40 The textual argument is straightforward: the Rule uses a mandatory verb, and a command to protect leaves no room to balance need against protection. The practical argument is predictability. A lawyer decides whether to put a candid evaluation in writing at the time of writing, so protection that depends on a later judge’s balancing invites the lawyer to write less, which is the harm Hickman described when it warned that an attorney’s thoughts “would not be his own.”41
Other courts speak in terms close to the absolute view. The Sixth Circuit has said that, absent waiver, a party may not obtain an adversary’s opinion work product, meaning any material reflecting the attorney’s mental impressions, opinions, conclusions, judgments, or legal theories.42 Another court of appeals has observed that some courts treat protection for certain opinion work product, such as a lawyer’s personal recollections, notes, and memoranda about witness interviews, as ironclad, and that the Supreme Court has made no commitment on the correct standard.43 Under either view a document must earn the opinion label, because “not every item which may reveal some inkling of a lawyer’s mental impressions, conclusions, opinions, or legal theories is protected as opinion work product,” a classification problem that a later section takes up.44
The Ninth Circuit rejected the absolute reading in Holmgren v. State Farm Mutual Automobile Insurance Co., a decision that stands against the Fourth Circuit’s rule.45 It reasoned that the textual argument ignores the Advisory Committee’s statement that the 1970 amendment conforms to the holdings of the cases viewed in light of their facts, and that Hickman, one of those cases, spoke of a “rare situation” in which production might be justified. It added that the Supreme Court had rejected in 1946 a proposed amendment giving opinion work product absolute protection, and that this rejection, followed by Hickman’s case-by-case approach, suggests the Court did not read mandatory language as demanding an absolute shield.46 The Rule’s wording fits that reading. It tells the court to protect against disclosure, and it does not forbid every disclosure, so it leaves room for an order that gives a requester what it truly needs in a form that shields counsel’s impressions.47 The next subsection returns to Holmgren’s own facts.
Most courts settle between the poles. The Third Circuit describes Rule 26(b)(3) as creating two tiers, with opinion work product “generally afforded near absolute protection from discovery.”48 It has also held that the protection “is not absolute, but requires a heightened showing of extraordinary circumstances.”49 The Eighth Circuit allows discovery of opinion work product only in rare and extraordinary circumstances.50 The wording runs from rare and exceptional circumstances to a highly persuasive showing, but every version demands more than the showing that unlocks fact work product.51 This middle position takes Upjohn’s “far stronger showing” at its word. It keeps the ordinary test from reaching counsel’s opinions while leaving open the Holmgren situation, in which the lawyer’s thinking is itself the evidence.
The hardship that succeeds for fact work product shows how the heightened standard bites. In Upjohn the Government stressed that the interviewees were scattered across the globe and that the company had forbidden employees to answer questions it considered irrelevant, yet the Court held that the Hickman language on necessity did not reach notes and memoranda of witnesses’ oral statements.52 Such notes are a particularly disfavored target because they tend to reveal the attorney’s mental processes.53 In United States v. Adlman the IRS sought a memorandum that outside accountants had prepared for a corporation, arguing that it would show the executives’ motive for a restructuring. The Second Circuit declined to decide whether opinion work product is ever discoverable, but it held that such material is protected unless a highly persuasive showing is made, and the IRS fell short.54 The court’s private review showed that the memo reflected the accountants’ legal analysis and not the executives’ motives, and the IRS offered only a bare assertion that the information was unavailable by other means.55
The death carries the first demand because it removes the interview and the deposition as routes to the facts, which is what the second prong of the ordinary test measures.56 It fails the second demand because counsel’s evaluation is not a fact the rider lacks, and the rider can form its own view once it has the statement. A court following the Fourth Circuit would deny the memo outright, and a court following the Third Circuit would deny it because the rider has shown nothing beyond the ordinary case for production. The memo would come into play only if counsel’s evaluation were itself what the case turned on, the situation the next subsection takes up.
Short summaries of the rule often describe the opinion tier as absolute immunity, and for a memo recording counsel’s view that a witness is lying, that label predicts the usual result.57 The label overstates the law, because the Supreme Court has held only that ordinary need and hardship do not suffice and has not decided whether any showing could.58 The safer description is that opinion work product is nearly absolute. One court captured the practical result by saying that counsel’s mental impressions are “almost always protected, absent (maybe) a showing of extreme and critical need.”59 The clearest route to that extraordinary showing is Holmgren’s: the mental impressions are the pivotal issue in the case, and the need for the material is compelling.60
Opinion Work Product at Issue
The best-known route to opinion work product opens when the mental impressions are themselves what the lawsuit is about. In Holmgren v. State Farm Mutual Automobile Insurance Co. the Ninth Circuit held that opinion work product may be discovered and admitted when mental impressions are at issue in a case and the need for the material is compelling.62 Other authority states the exception in the same terms: opinion work product is discoverable if the strategy and mental impressions of a party’s agents and attorneys are directly at issue and the information could not be obtained elsewhere.63 Rule 26(b)(3)(B) says nothing about the exception, so it is a judicial gloss on the mandatory shield, and courts that treat the shield as absolute reject it.64
The documents in Holmgren were handwritten memoranda by a State Farm adjuster, written while an earlier lawsuit was pending, that valued the claimant’s losses and fixed the insurer’s potential liability. The claimant later sued State Farm for bad faith in the settlement process. The court treated the memoranda as opinion work product, because they recorded an adjuster’s opinion of what the claim was worth, and it still upheld the order compelling them.65 In a bad-faith settlement case, the court reasoned, the insurer’s strategy, mental impressions, and opinions about handling the claim are directly at issue. A plaintiff may therefore show a compelling need for the claim file’s evaluation of the claim’s viability and value, unless that information is available elsewhere.66
Each condition answers a different risk. The pivotal-issue condition ties the exception to the elements of the case and keeps it narrow. An opponent’s thinking is always somewhat relevant to how a case will be tried, so if relevance sufficed, every litigant could say that counsel’s evaluation is at issue and the shield would dissolve. Requiring that a claim or defense turn on the evaluation itself confines the exception to cases like Holmgren, where the adjuster’s valuation is evidence of what the insurer knew when it handled the claim. The shield exists so that lawyers and their representatives will write candid evaluations, and that purpose has little force when the evaluation is the evidence: an insurer cannot defend its good faith while sealing the one record of its own assessment. The other two conditions carry forward Upjohn’s demand for a showing well beyond ordinary need and hardship.70 They also reinforce each other, because a requester who can reach the same evidence by deposing a witness has no compelling need for the lawyer’s file.
The same reasoning appears when a lawyer’s own work is the subject of the dispute. Squire Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. arose under Ohio’s good-cause standard for work product, so it illustrates the logic under a state rule and does not bind federal courts. After the client alleged that the firm had breached its contractual and professional duties and overcharged, the firm sought the mental impressions of two client representatives about the defense of the earlier litigation and their evaluation of the firm’s performance.71 Relying on Holmgren, the Ohio Supreme Court held that attorney work product, including mental impressions and legal conclusions, may be discovered on good cause if it is directly at issue, the need is compelling, and the evidence cannot be obtained elsewhere.72 The value and quality of the firm’s work were the pivotal issues. The client’s evaluations had allegedly shaped its decisions about how to defend the earlier case and whether to keep paying the firm, and those evaluations sat in the exclusive possession of the client and its officers.73 The court drew a general lesson: once a claim for fees or a charge that the attorney breached a duty to the client puts the representation at issue, work product is discoverable to the extent necessary to collect the fees or defend against the claim.74 Some courts also allow the protection to be breached when there is a charge of falsified testimony, as where the government made a prima facie case that an attorney had suborned perjury, a setting tied to the crime-fraud exception that the last subsection takes up.75
A requester who merely wants to see how the other side’s lawyers think falls outside the exception, and two decisions show how that failure looks. In Adlman, the Second Circuit held that the accountants’ memorandum was protected unless a highly persuasive showing was made. The memo recorded the accountants’ legal analysis and not the executives’ motives, so it did not speak to the issue the IRS said it needed, and the IRS offered only a bare assertion that the information was unavailable by other means.76 In United States v. Deloitte LLP the court of appeals affirmed a finding that the company had not waived work-product protection, reasoning that discovery under those circumstances would undercut the adversary process and let the government litigate “on wits borrowed from the adversary.”77 What separates Adlman from Holmgren is the relation between the opinion and the claim. The Holmgren adjuster’s valuation was the thing to be proved, while the Adlman memo did not record the motive the IRS wanted to prove.
The at-issue inquiry therefore follows the pleaded claim. The same kind of adjuster memo is protected in one suit and compelled in the other, because only in the second does an element of the claim turn on what the adjuster thought. An exam answer should say so in those terms and should not suggest that pleading a suit about a lawyer’s or insurer’s conduct dissolves the shield by itself. The requester must still show that the opinions are pivotal, that the need is compelling, and that no other source exists. A requester who stops at relevance, or who wants only a look at counsel’s strategy, has shown nothing beyond what the near-absolute view already refuses to honor.
Client Fraud and Innocent Counsel
Rule 26(b)(3)(B) directs the court to protect counsel’s mental impressions, conclusions, opinions, and legal theories even after other work product has been ordered produced.79 A separate doctrine can nevertheless strip work-product protection when a client has used a lawyer’s services to commit a crime or fraud. Courts apply the crime-fraud exception to work product much as they apply it to the attorney-client privilege, and it reaches material that relates to the part of the lawyer’s work that furthered the wrongful purpose.80 The exception itself, together with waiver, belongs with the privilege materials, so this subsection asks only what survives it. One leading answer comes from re Green Grand Jury Proceedings, where the Eighth Circuit held that an attorney who is not complicit in the client’s wrongdoing may assert work-product protection for opinion work product, while an innocent attorney may be required to disclose ordinary work product.81 The fact-versus-opinion line that organizes this chapter therefore decides what a lawyer keeps even when a general exception applies.
The split follows from whose interest each tier serves. A client who enlists a lawyer in a crime or fraud has misused the relationship. Ordinary work product, which consists mostly of factual information and carries only qualified protection, gives way on prima facie evidence of the client’s wrongdoing even when the lawyer knew nothing of it.82 Opinion work product rests on a different interest. The protection there belongs to the attorney, who has an interest in keeping opinions and thought processes private, and it benefits all of the attorney’s clients by giving the lawyer room to compose candid thoughts.83 A client’s fraud says nothing about that interest. If an innocent lawyer’s evaluations became reachable whenever one client misused the relationship, every lawyer would write more guardedly for every client, out of fear of a misdeed the lawyer could neither see nor prevent.
The lawyer’s knowledge is therefore the pivot, and it matters only for the opinion tier. The attorney-client privilege can be lost to the crime-fraud exception even when the lawyer is entirely innocent.84 A party seeking opinion work product, by contrast, must make a prima facie showing that the lawyer was aware of or a knowing participant in the criminal conduct.85 The reason is the interest that protected the innocent lawyer. A lawyer who knowingly furthers the client’s scheme has no independent claim to privacy over thinking devoted to that scheme, so the lawyer’s opinion work product can be obtained as well.86 Courts have allowed the same result where the lawyer is charged with criminal misconduct of the lawyer’s own, as where the government made a prima facie case that an attorney had suborned perjury.87
Green also shows where the line between the tiers falls inside a lawyer’s file: the lawyer’s notes of witness interviews and recollections of conversations with the client were treated as opinion work product.88 Interview notes qualify because a lawyer taking notes records what the lawyer saw fit to write down, so the selection itself reveals mental impressions.89 Testimony about the lawyer’s recollections of client conversations would likewise expose the lawyer’s thought processes. A table of dates and dollar figures copied from the client’s own records records only facts and sits on the ordinary side, where it can be ordered produced.90 A later section takes up how courts classify interview notes more generally.
An exam answer should keep the privilege and the work-product doctrine apart on this point. Because the privilege can be lost on the client’s purpose alone, it is tempting to say the same of every work-product item, but only the ordinary tier follows that pattern. A lawyer who was unaware of the fraud still withholds interview notes and recollections of client conversations, and the party seeking them must show the lawyer’s awareness or participation.