Among many other variations in federal courts' analyses of
the work product rule, courts disagree about whether the doctrine
only applies to "documents and tangible things" —
per Fed. R. Civ. P. 26(b)(3)(A)'s language. Most courts find
that federal common law extends the same protection to intangible
work product, such as a witness's memory being probed by an
adversary's deposition questions.
Some courts take a narrower view. In Smyth v.
Williamson, No. 2:13-cv-2553-DCN, 2014 U.S. Dist. LEXIS 64777
(D.S.C. May 12, 2014), automobile accident plaintiff Smyth sent a
deposition subpoena to defendant Williamson's insurance company
State Farm. Smyth sought a State Farm representative's
testimony about (among other things) the "substance" of
any statement Williamson gave to a State Farm agent. Id.
at *3. Although the work product doctrine's applicability to
either a document memorializing any statement (or even the
statement itself) could present a close question, the
