Many courts apply what is called the Sporck doctrine, which sometimes provides opinion work product protection to a lawyer's selection of important documents out of a larger universe of documents that do not intrinsically deserve privilege or work product protection.
Some litigants are caught carrying the Sporck doctrine too far. In In re Method o[f] Processing Ethanol Byproducts & Related Subsystems Patent Litigation, Case No. 1:10-ml-2181-LJM-DML, 2011 U.S. Dist. LEXIS 128865 (S.D. Ind. Nov. 4, 2011), one defendant's lawyer deposing a witness introduced exhibits that the lawyer had obtained from a third party, but not produced to the plaintiff. When the plaintiff complained, the defendant relied on the Sporck doctrine – arguing that "the documents were gathered and specially selected from groups of documents by their lawyers as part of the lawyers' fact-finding investigation." Id. at *10-11. The court rejected this argument, concluding that any work product claim did not trump "the defendants' Rule 34 obligations to produce responsive, relevant, non-privileged documents in their possession, custody, or control." Id. at *13-14. The court sanctioned the defendants for not having produced the responsive documents before the deposition.
The Sporck doctrine follows the work product doctrine's basic purpose – preventing one side from "piggybacking" on the other side's work. For this reason, the opinion work product can protect a lawyer's selection of intrinsically non-protected documents only if the other side has an equal chance to select the documents it thinks most important. At the least, a party claiming some work product protection for documents obtained from a third party, but not necessarily produced to the adversary, must disclose the documents' existence. And most courts require the documents' production if they are responsive.
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