Last week's
Privilege Point discussed an important variation in courts'
interpretation of the same sentence in their work product rule. Two
other cases highlight additional disagreements: (1) the standard
for overcoming opinion work product protection; and (2) the work
product protection's duration.
In Byman v. Angelica Textile Services, Inc. (In re Sadler
Clinic, PLLC), the court described courts' varied opinion
work product protection levels — including the Fourth
Circuit's absolute protection for such work product. Ch. 7 Case
No. 12-34546, Adv. No. 14-03231, 2015 Bankr. LEXIS 1369, at *16
(Bankr. S.D. Tex. Apr. 17, 2015). But the court rejected that
approach — instead applying a "compelling or
extraordinary need" standard for overcoming opinion work
product protection. Id. at *18-19. A few weeks earlier, a
Delaware state court adopted a similar standard — finding
that an adversary could overcome a litigant's opinion work
product protection if the document "is
