Last week's Privilege Point addressed courts' varying views on whether work product protection can extend to a non-party's documents. Courts also disagree about the heightened opinion work product protection, under which a court "must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning a litigation." Fed. R. Civ. P. 26(b)(3)(B) (emphasis added).
In Beltran v. InterExchange, Inc., Civ. A. No. 14-cv-03074-CMA-CBS, 2018 U.S. Dist. LEXIS 22564, at *24 (D. Colo. Feb. 12, 2018), the court inexplicably held that "[t]he Tenth Circuit is clear that work product privilege concerns the mental impressions of counsel," and therefore cannot extend to nonlawyers' opinions. Other courts take the same narrow approach – which ignores the Rule's clear language. A more subtle disagreement focuses on whether a corporate litigant's employee's litigation-related documents can deserve opinion work product protection. The fact work product rule clearly covers a "party," but the opinion work product doctrine on its face protects only opinions "of a party's attorney or other representative." Rule 26(b)(3)(B). Some courts hold that a corporate litigant's employee counts as a "party" and therefore cannot claim the heightened opinion work product protection, while other courts hold that such employees are a party's "representative" and therefore can assert opinion work product protection.