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In particular it has been held that for the work product
privilege to apply to an attorney’s selection of documents, a
court should first determine that (1) disclosure of the documents
would create a “real, nonspeculative danger of revealing the
lawyer’s thoughts”, and (2) the lawyer had a justifiable
expectation that such mental impressions revealed by the
materials would remain private. See In re San Juan Dupont Plaza
Hotel Fire Litig., 859 F.2d 1007, 1015-1016 (1st Cir. 1988).5
Similarly, other courts have refined and distinguished the Sporck
holding. See, e.g., Resolution Trust Corp. v. Heiserman, 151
F.R.D. 367, 374-375 (D. Colo. 1993); Pepsi-Cola Bottling Co.
Pittsburgh, Inc. v. Pepsico, Inc., No. 01-2009-KHV, slip op. at 6
(D. Kan., Nov. 8, 2001).
5 In Sporck v. Peil, 759 F.2d 312, 319 (3d Cir. 1985), this
same point was raised, as follows, in a dissenting opinion:
The problem with * * * [the majority’s] theory is
that it assumes that one can extrapolate backwards from
the results of a selection process to determine the
reason a document was selected for review by the
deponent. There are many reasons for showing a
document or selected portions of a document to a
witness. The most that can be said from the fact that
the witness looked at a document is that someone
thought that the document, or some portion of the
document, might be useful for the preparation of the
witness for his deposition. This is a far cry from the
disclosure of the a [sic] lawyer’s opinion work
product. Even assuming that the documents were
selected by the petitioner’s attorney, the subject
matter is so undifferentiated that its potential for
invasion of work product is minuscule at best.
[Citations omitted.]
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