Large-scale, industrial construction litigation naturally involves high volumes of documents exchanged through discovery, which must be marshaled, reviewed and compiled in some form by counsel. Many times, adverse parties seek access to such compilations of what are otherwise completely discoverable documents. The Federal Courts have protected compilations under what has been termed the “selection and compilation” theory of the work product doctrine. Federal Courts have held that, in cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research. James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D.Del.1982). The most widely cited cases regarding the doctrine are the Third Circuit’s decision in Sporck v. Peil, 759 F.2d 312 (3d Cir.1985), cert. denied, 474 U.S. 903 (1985), and the Eighth Circuit’s decision in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986). In Sporck, defendants produced thousands of documents and defendant’s counsel selected and had defendant review certain documents in anticipation of his deposition. Defendant’s counsel did not claim any of the documents were work product; however, the court upheld counsel’s objections to deposition questions which sought the identification of documents the deponent reviewed to prepare for the deposition. The court held that counsel’s selection and compilation of the documents fell within the category of highly protected opinion work product, because the compilation of the documents would reveal counsel’s mental impressions and opinions as to how the documents related to the issues. It further held that an attorney’s legal strategy, his intended lines of proof, his evaluation of the strengths and weaknesses of his case and the inferences he draws from the facts are all opinion work product. The court stated:
Such material is accorded an almost absolute protection from discovery because any slight factual content that such items may have is generally outweighed by the adversary system’s interest in maintaining the privacy of an attorney’s thought processes and in ensuring that each side relies on its own wit in preparing their respective cases.
Id. at 316.
In Shelton, defendant’s in-house counsel refused to respond to deposition questions seeking information regarding the existence or non-existence of documents in defendant’s possession. Counsel argued that: 1) relevant documents were already produced, interrogatories were answered, counsel’s knowledge was acquired solely in her efforts to assist her client in litigation and thus constituted work product; and 2) any recollection of particular documents on certain subjects would reveal those to which counsel attached particular significance, revealing her theories and opinions. The court held that counsel had no first hand factual information related to the claims and that the questions she was asked sought more than just information about the existence of documents. The court agreed that the selective review and recollection of documents reflects the attorney’s professional judgment on the issues, as well as her legal theories and thought processes. It found that “[i]n cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research….” Id. at 1328; see also, In re Grand Jury Subpoenas Dated October 22, 1991 and November 1, 1991, 959 F.2d 1158 (2d Cir.1992) (applying the Sporck principle that production of otherwise unprivileged documents that could be protected from discovery if their disclosure presented a real concern that the thought processes of counsel would be exposed); Santiago v. Miles, 121 F.R.D. 636, 638-40 (W.D.N.Y.1988) (court applied Sporck, finding that Second Circuit has recognized the selection and compilation doctrine; while data in computer printouts consists of unprivileged facts, printouts were prepared at direction of counsel and reflect counsel’s selection process and mental impressions, deserving of protection in absence of strong showing of necessity and unavailability).
Thus counsel’s selection and compilation of otherwise discoverable documents should be protected under the work product doctrine.
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