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.

Next week's Privilege Point addresses another key judicial disagreement about the work product doctrine, which involves the protection's basic reach rather than specific rule language.