The Massachusetts Appeals Court recently issued a decision which should remind lawyers of the limits of the work product doctrine.   

The Court's ruling last week in Cahaly v. Benistar vacated and remanded a Superior Court's decision not to sanction a lawyer for withholding purported work product in discovery.  At trial, a key issue had been whether employees of defendant Merrill Lynch had viewed certain web pages.  One employee, working under the direction of the company’s lawyers, had read the pages, but documents reflecting his review were withheld from discovery based on the work product doctrine.  At trial, Merrill then defended itself by asserting that "'the Merrill people did not know" the contents of the pages.

The Appeals Court applied the established doctrine that the work product doctrine can be overcome by a showing of a “substantial need,” and held that “[s]ubstantial need is shown where, as here, the work product at issue is central to the parties’ substantive claims.“  The Court also issued a reminder that “fact work product” “receives far less protection” than opinion work product, and that the question of whether Merill employees had viewed the web page was a factual question.

What should lawyers take from the ruling?

• Work product is not shielded from discovery if, as the Court held, “the parties’ dispute ‘puts in play’ the knowledge of the plaintiff and her attorney…”;

• The fact that a lawyer looks at a document does not immunize the document from discovery;

• The work product doctrine will not shield relevant facts from discovery; and

• The work product doctrine is far less absolute than the attorney-client privilege.  The “substantial need” exception and the “fact/opinion” distinction simply do not exist in the attorney client privilege.

Cahaly is an excellent reminder for all counsel that the work product doctrine has limits and that the substantial need test for obtaining work product can be satisfied where the work product is central to a party’s claim or defense