## Facts

- A securities-fraud class action alleged that National Semiconductor Corporation’s officers, including Charles E. Sporck, made misrepresentations and omissions to inflate stock value so insiders could sell at inflated prices.
- Discovery was extensive: defendants produced hundreds of thousands of documents, and plaintiffs copied over 100,000; there was no claim that defendants withheld responsive documents.
- To prepare Sporck for deposition, defense counsel selected a subset of previously produced documents, compiled them together, and used them in deposition preparation.
- The parties agreed that the individual documents, viewed separately, were not privileged or attorney work product.
- At Sporck’s deposition, plaintiffs asked whether he reviewed documents to prepare; after he answered yes, plaintiffs sought identification and production of all documents he reviewed for the deposition.
- Defense counsel objected that compelling identification of the subset would reveal counsel’s mental impressions and litigation strategy.
- The district court ordered Sporck to identify and/or produce the preparation documents; Sporck sought mandamus relief in the Third Circuit to vacate that order.

## Issues

1. Whether compelling identification of a subset of documents selected by counsel from a larger production to prepare a witness constitutes disclosure of protected opinion work product under Federal Rule of Civil Procedure 26(b)(3).
2. Whether mandamus is available to overturn a discovery order that compels disclosure of alleged opinion work product.

## Decision

- The Third Circuit granted the writ of mandamus and vacated the district court’s discovery order.
- The court held that the requested identification of the documents selected by defense counsel for deposition preparation would reveal counsel’s mental impressions and strategy and was protected opinion work product.
- The court concluded the district court’s order was a clear error and that post-judgment review would not adequately cure the harm from compelled disclosure.

## Legal Principles

- Opinion work product under Rule 26(b)(3) includes materials that reflect an attorney’s mental impressions, legal opinions, or trial strategy and receives heightened protection.
- Even when underlying documents are fully discoverable, the act of selecting and compiling a particular subset from a large universe of produced materials may be protected if the selection itself reveals counsel’s thought process.
- Discovery should not be used to force an adversary to disclose which evidence counsel considers important for proving claims or defenses.
- Mandamus may issue to correct a clear discovery error when compelled disclosure would cause irreparable harm that cannot be effectively remedied after final judgment.

## Conclusion

The court held that forcing a deponent to identify the specific documents counsel selected for deposition preparation improperly exposed opinion work product, and it used mandamus to prevent disclosure because the resulting harm would be effectively irreversible.


Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985)