Courts should be cautioned not to apply the result in Washington Bancorporation, which involved a primitive index requiring virtually no attorney skill to create, to cases involving a more complex document management system designed and used by attorneys and the discoverability of which would constitute a significantly higher degree of intrusion into an attorney's mental impressions
Attorney's Mental Impressions
and Conclusions About the Case
First, the Federal Rule only protects tangible things like documents, whereas the common law rule extends to intangible things like a lawyer's mental impressions
The SAR contains select facts about a health and safety violation, the A14 said, along with "the mental impressions
, conclusions and opinions of MSHA officials used in the determination to categorize the violations as flagrant, and thus enhancing the penalties assessed.
43) Because of the use of the word "considered", the Advisory Committee explained that "It]he refocus of disclosure on 'facts or data' is meant to limit disclosure to material of a factual nature by excluding theories or mental impressions
The Hickman Court underscored the need for protection of "work product," but, more importantly, and perhaps for the first time, extended the doctrine to unwarranted inquiries into the files and mental impressions
, and hence opinions, of an attorney, dealing in that case with a discovery request for information and memoranda summarizing oral interviews of witnesses, i.
This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions
, personal beliefs, and countless other tangible and intangible ways.
Next, we consider five possible variants of encoding frames, their likely effect on consumers' mental impressions
, and the type of measure best suited for capturing these impressions.
Even when the showing has been made, however, the court "shall protect against disclosure of the mental impressions
, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Our minds are constantly bombarded with sensory inputs which are translated into the mental impressions
we have of our environment.
The work product privilege protects material that is prepared in anticipation of litigation or for trial--by an attorney, a person working for an attorney, or in some cases a nonattorney--and contains or reflects mental impressions
, thought processes, theories, opinions, or conclusions.
He states, "While the likes of mental impressions
, conclusions, opinions or legal theories can be redacted, you cannot assume that they will be.