Because what is called "opinion work product" deserves higher protection than fact work product (and in many courts enjoys "absolute or nearly absolute" protection), litigants understandably seek to withhold documents on that basis. Fed. R. Civ. P 26(b)(3) explains that such highly protected opinion work product can be created by "a party's attorney or other representative." (Emphasis added.) SDNY privilege guru Judge Parker recognized this expansive possibility in Abrahami v. Meister Seelig & Fein LLP, No. 21-CIV-10203 (JFK) (KHP), 2023 U.S. Dist. LEXIS 40884, at *3 (S.D.N.Y. Mar. 10, 2023) (noting that "[o]pinion work product consists of the mental impressions, conclusions, opinions and legal theories of an attorney or other representative of a party").
Just a few days later, the Missouri Supreme Court in Hill v. Wallach, explained that "[o]pinion work product 'encompasses a lawyer's opinions, conclusions, mental impressions and legal theories.'" 661 N.W.3d 786, 790 (Mo. 2023) (citing an Eighth Circuit opinion (emphasis added)). The Supreme Court inexplicably did not quote its own Missouri Rule 56.01(b)(5) which clearly recognizes that work product can be created by "an attorney or other representative of a party."
Lawyers litigating in state or federal court should remember that the applicable opinion work product rule provision usually provides a far broader protection than many court opinions articulate. Interestingly, few courts have addressed an interesting issue — whether a party itself (who clearly can create protected fact work product) may also create the more highly protected type of opinion work product.
Published July 10, 2023.
