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'Although the work product privilege protects work product created by the attorney, the privilege does not protect facts contained within or underlying attorney work product.') (citing In re Unilin Decor N.V., 153 F. App'x 726, 728 (Fed.Cir.2005); Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995); Dunkin' Donuts, Inc. v. Mary's Donuts, Inc., 206 F.R.D. 518, 520-21 (S.D. Fla. 2002); Onwuka v. Fed. Express Corp., 178 F.R.D. 508, 515 (D. Minn. 1997); Phillips Elecs. N. Am. Corp. v. Universal Elecs., Inc., 892 F.Supp. 108, 110 (D. Del. 1995); Swarthmore Radiation Oncology v. Lapes, 155 F.R.D. 90, 92 (E.D. Pa. 1994)); cf. Fisher v. Nat'l R.R. Passenger Corp., 152 F.R.D. 145, 156 (S.D. Ind. 1993) (work product protection 'consistently ... held not to prohibit discovery of mere facts') (collecting cases); cf. Hickman v. Taylor, 329 U.S. at 513 (discussing pre-Rule 26(b)(3) denial of discovery into what is effectively both opinion and fact work product, and noting that such denial will not 'unduly hinder' the petitioner in 'the discovery of facts').


When the facts are so intertwined with the mental impressions of the attorney or other work product protected materials, other methods exist for ...

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