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Selection and Compilation by Counsel of Discoverable Documents Should Be Covered Under the Doctrine of the Work Product

¬†Naturally, large-scale, industrial construction litigation requires high quantities of documents exchanged through discovery, which must be marshaled, checked and collected by counsel in some manner. Adverse parties also demand access to certain compilations of what are otherwise fully discoverable records. Under what has been dubbed the “selection and compilation” principle of the work product doctrine, the Federal Courts have covered compilations. Federal courts have held that the collection and compilation of records is much more important than legal study in cases requiring reams of documents and thorough record discovery. 93 F.R.D. 138, 1444 James Julian, Inc. v. Raytheon Co. (D.Del.1982). The most frequently cited cases relating to the doctrine are the opinion of the Third Circuit in Sporck v. Peil, 759 F.2d 312 (3d Cir.1985), cert. Denied, 474 U.S. 903 (1985), and the decision of the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 13233 1323d (8th Cir.1986). In Sporck, in preparation of his deposition, the defendants produced thousands of documents and the defendant’s lawyers preferred and made the defendant review those documents. The defendant’s counsel did not argue that any of the documents were work items; however, the court upheld the objections of the counsel to deposition issues seeking the identification of documents examined by the deponent to prepare for the deposition. The court found that the collection and compilation of the documents by the counsel fell under the category of highly protected opinion work product, since the compilation of the papers would disclose the mental observations and views of the counsel as to how the papers applied to the issues. It further held that the legal strategy of an attorney, his expected lines of evidence, his assessment of the strengths and limitations of his argument, and the inferences he draws from the facts are all products of opinion practice. The tribunal stated:

An almost total immunity from discovery is given to such information because any minor factual substance that such objects may have is usually outweighed by the interest of the adversary system in protecting the privacy of the thought processes of an attorney and in ensuring that each side relies on its own wit in preparing their respective cases.

In Shelton, the in-house defendant’s attorney declined to respond to deposition questions requesting clarification about the presence or non-existence of records in the hands of the defendant. Counsel argued that: 1) relevant documents were already created, questions were answered, the expertise of counsel was gained solely in her attempts to assist her client in litigation and thus constituted a work product; and 2) any memory of specific documents on certain subjects would disclose those to which counsel attached special importance, exposing her theories and opinions. The court held that the prosecutor had no first-hand reliable knowledge relating to the allegations and that more than just information about the nature of records was sought from the questions she was asked. The court accepted that the selective examination and recall of records represents the professional opinion of the attorney on the issues, as well as her legal theories and processes of thought. It found that the collection and processing of records is always more important than legal analysis in cases involving reams of documents and thorough record discovery….’

Thus, under the work product doctrine, the collection and compilation of otherwise discoverable documents by counsel should be covered.