A novel issue of work product privilege was decided today by the North Carolina Court of Appeals in Boyce & Isley, PLLC v. Cooper. The Court held that an attorney’s verbatim copying of the text of selected documents at a document production was entitled to the protection of the privilege.
Here are the facts: during a document production, an attorney for the Defendant made notes on her laptop computer of the documents being reviewed. Her notes included "short snippets of verbatim text from certain documents" and her "thoughts regarding them and her theories of the case."
Plaintiff moved to compel production. The trial court ordered the production of the lawyer’s notes, but the Court of Appeals accepted an interlocutory appeal of the issue and reversed.
The precedent the Court found to be similar consisted of federal cases holding that an attorney’s highlighting of documents constituted protected work product. The Court of Appeals held that "the act of defendants’ counsel of inputting text from [plaintiff’s] files into her laptop is analogous to an attorney highlighting select portions of copied documents."
The Defendants also argued that the lawyer’s selection of a few items to record verbatim — out of thousands of pages of documents produced — warranted the protection of the work product privilege. The Court agreed, and held moreover that this was opinion work product entitled to absolute protection:
Defendants contend that the disclosure of the notes would direct plaintiffs to the few documents and portions thereof that defendants’ counsel focused on and considered significant enough to emphasize from among a vast number of items. We agree. Consequently, we conclude that the verbatim text entered in the computer of defendants’ counsel qualifies as opinion work product and is not discoverable, especially where plaintiffs. . . already have the underlying, original documents in their possession. As such, the trial court abused its discretion by concluding otherwise. Furthermore, even assuming, arguendo, that the verbatim text here qualifies merely as ordinary work product as opposed to opinion work product, we agree with defendants that plaintiffs have neither argued nor shown that there is a “substantial need” or “undue hardship” to justify production, particularly given that [plaintiffs have] all of the underlying documents in [their] possession.
The Court also observed that "in cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is more crucial than legal research." (quoting Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)).
I’ve used the term "privilege" in this post, the Court of Appeals said that work product is actually a "qualified immunity."