It’s one of the first steps. Upon learning of an event—an accident, a breach—that makes one contemplate litigation, a party’s lawyer or the lawyer’s investigator interviews nonparties with relevant knowledge. These interviews produce facts, of course, but also could contain, directly or indirectly, the lawyer’s mental impressions or legal strategies about important things such as the strength of a potential claim, liability exposure, or damages.
The interview results come in different forms. Some lawyers audio- or video-tape a question-and-answer session with the potential witness; others translate the witness’s comments into a sworn declaration; while still others memorialize the interview in a lawyer-prepared memorandum. And when litigation erupts and the adversary moves to compel the recorded interview, the declaration, or the memorandum, the party’s lawyer chuckles while asserting the work-product doctrine.
The chuckling stops, however, when the lawyer sees how courts have ruled in a seemingly complex maze of fact work-product and opinion work-product. Isn’t a recorded interview simply a recitation of facts devoid of an attorney’s mental impressions? Same goes for a signed witness statement, right? “Facts aren’t privileged” is a familiar if inapposite refrain. “Just redact the lawyer’s comments and produce the facts” is another.
Maybe one court has answered these questions and solved the nationwide inconsistency. Let’s discuss.