construction of Rule 26(b)(3),” but was instead independently relying on the statutory language of Exemption 5. Grolier, 462 U.S. at 26, 103 S.Ct. at 2214. 12 . The courts have generally recognized a difference between fact work product and opinion work product. See generally 6 Moore’s Federal Practice § 26.70[5][b], [e] (Daniel R. Coquillette et al. eds., 3d ed.1997). The substantial need/undue burden test applies only to fact work product. Id. § 26.70[5][b]. The circuits are divided on whether there is absolute protection for opinion work product. Some courts have held that opinion work product is absolutely protected; others have concluded it may be discovered under. compelling circumstances. Compare Holmgren v. State Farm Mut. Auto. Ins. Co., 976 F.2d 573, 577 (9th Cir.1992) (<HOLDING>), and In re Sealed Case, 676 F.2d 793, 809-10
holding opinion work product to be absolutely protected holding opinion work product may be discovered when mental impressions are at issue and need for material is compelling holding that fedrcivp 26b3 does not require absolute protection for opinion work product and noting that these materials may be discovered and admitted when mental impressions are at issue in the case and the need for the materials is compelling holding that cover letters from counsel to an expert that do not contain mental impressions opinions or conclusions of counsel are discoverable but written notes that contained the lawyers mental impressions were protected holding that materials prepared by an investigative audit committee were not work product because they were not the mental impressions conclusions opinions or legal theories of an attorney