[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

quoted language from Hickman, however, did not apply to “oral statements made by
witnesses . . . whether presently in the form of [the attorney’s] mental impressions or
memoranda.” As to such material the Court did “not believe that any showing of necessity
can be made under the circumstances of this case so as to justify production. If there should
be a rare situation justifying production of these matters, petitioner’s case is not of that
type.” Forcing an attorney to disclose notes and memoranda of witnesses’ oral statements is
particularly disfavored because it tends to reveal the attorney’s mental processes. 8 . . .
The notes and memoranda sought by the Government here, however, are work product
based on oral statements. If they reveal communications, they are, in this case, protected by
the attorney-client privilege. To the extent they do not reveal communications, they reveal
the attorneys’ mental processes in evaluating the communications. As [FRCP] 26 and
Hickman make clear, such work product cannot be disclosed simply on a showing of
substantial need and inability to obtain the equivalent without undue hardship.
While we are not prepared at this juncture to say that such material is always protected
by the work-product rule, we think a far stronger showing of necessity and unavailability by
other means than was made by the Government or applied by the Magistrate in this case
would be necessary to compel disclosure.
In re Vioxx Products Liability Litigation
501 F. Supp. 2d 789 (E.D. La. 2007)
Eldon E. FALLON, United States District Judge.
. . . Although Merck has produced over two million documents in this Multidistrict
litigation (MDL), the company has also asserted attorney-client privilege as to
approximately 30,000 documents which it contends need not be produced. The majority of
the withheld documents are print-outs of electronic communications, primarily internal
company e-mails and attachments. . . .
On April 25, 2007, after giving notice and allowing the parties an opportunity to be
heard, the Court appointed Professor Paul R. Rice of American University’s Washington
College of Law as Special Master [and] requested that Special Master Rice review 2,000
representative documents, as well as approximately 600 additional documents selected by
the Plaintiff’s Steering Committee (PSC) and believed to be relevant to upcoming trial
preservation depositions, and make recommendations as to whether or not Merck’s claims
of privilege should be upheld. . . .
II. SPECIAL MASTER’S REPORT
In addition to providing written recommendations on a document-by-document basis,
Special Master Rice issued a twenty-one-page Report that discusses the law of attorneyclient
privilege both in general and in the context of this multidistrict litigation . . . , [part
of] which reads as follows: . . .
172