Thomas Spahn | McGuireWoods
Last week’s Privilege Point described a pro se litigant’s losing evidentiary protection argument based solely on the narrow attorney-client privilege, rather than on the broader and presumably applicable work product protection. Kachele v. El-Maasri, Case No. 25-cv-3458-AGS-MMP, 2026 U.S. Dist. LEXIS 15935 (S.D. Cal. Jan. 28, 2026).
Two weeks earlier, a federal court assessed opinion work product protection for an insurance company’s investigation files. Gurner v. American Family Mutual Insurance Co., Case No. 3:24-cv-00158-MMD-CSD, 2026 U.S. Dist. LEXIS 7944 (D. Nev. Jan. 15, 2026). The court examined whether “the claims log/notes were prepared under the direction of an attorney.” Id. at *9. That was understandable since a lawyer’s involvement would be helpful in determining whether the documents’ creation was motivated by anticipated litigation rather than ordinary insurance company business considerations.
But the court also described the more highly protected “[o]pinion work product” as “an attorney’s mental impressions, conclusions, opinions, or legal theories.” Id. at *7. Courts that limit the heightened “opinion” work product definition just to lawyers’ documents ignore Fed. R. Civ. P. 23(b)(3)(B)’s explicit extension of that valuable protection to “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation” (emphasis added).
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