The Etters v. Knox County, Tennessee, No. E2022-01498-COA-R9-CV (Tenn. Ct. App. Dec. 14, 2023) opinion provides a great refresher on the Tennessee work product doctrine and gives an example of how the doctrine can be waived.
I won’t reprint the majority of the 11-page opinion here, but click on the link above to see the discussion on the doctrine (starting at page 6) and waiver of it (page 9). However, I will set out footnote 3 of the opinion, which addresses actions by the trial court declaring that certain portions of a single document work product and other portions were not.
We would be remiss, however, if we failed to emphasize that the language utilized in Tennessee Rule of Civil Procedure 26.02(3) and the cases interpreting same refer to “documents,” “materials,” and “tangible things.” The Pension Board points out that although the trial court found that the work product doctrine was applicable to the Letter in its December 2021 order, the court proceeded to select certain sections of the Letter as protected by the doctrine and to delineate other sections that were not. The trial court cited
no precedent for this approach. We have likewise failed to locate any authority allowing documents to be separated into parts with only particular sections treated as protected. We therefore conclude that the attorney work product protection would extend to the entire document rather than only to certain sections contained therein.
Id. at p. 8, fn. 3 (emphasis added).