In a February 20, 2015 decision, Fed. Trade Comm'n. v. Boehringer Ingelheim Pharm., Inc., the US Court of Appeals for the District of Columbia Circuit held that a party claiming opinion work product protection bears the burden of showing how disclosure would reveal the attorney's legal impressions and thought processes (No. 09-mc-00564, (D.C. Cir. Feb. 20, 2015)). In so holding, the court clarified that general or routine document requests reveal nothing about an attorney's mental impressions, and therefore do not qualify for opinion work product protection.

The Federal Trade Commission (FTC) initiated an antitrust investigation into a settlement agreement between pharmaceutical manufacturer Boehringer and a competitor regarding the marketing and sale of certain patented drugs. As part of its investigation, the FTC issued a subpoena duces tecum seeking various documents relating to the settlement. Boehringer complied with the subpoena, but withheld hundreds of responsive documents under the work product doctrine and attorney-client privilege.

The district court largely upheld Boehringer's work product claims, in part based on its conclusion that an attorney's request for a document can be sufficient to warrant opinion work product protection. The FTC appealed, arguing in part that the district court applied an overly expansive definition of "opinion work product," which is highly protected, when many of the documents were really "fact work product," which has a lower level of protection.

The DC Circuit agreed, holding that general or routine document requests reveal nothing about an attorney's mental impressions, and thus do not quality for opinion work product protection. The court noted that when a factual document selected by counsel exposes the attorney's thought process and theories, it may be appropriate to treat the document as opinion work product, but only if the selection reflects the attorney's focus in a meaningful way. Where it appears that the attorney's opinion is obvious or non-legal, the party claiming the privilege must show specifically how the disclosure would reveal the attorney's legal impressions and thought processes. Because the district court failed to demand such a showing, the DC Circuit remanded the case to the district court for further consideration.

Practitioners in the DC Circuit should note that in cases where a party claims that documents are protected as opinion work product, and the attorney opinion is not readily evident, the burden will fall on the party claiming the privilege to demonstrate why disclosure would reveal the attorney's legal impressions and thought processes. The party must show something beyond mere routine document requests, which reveal nothing about an attorney's mental impressions.