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. More…
A critical part of an attorney-led investigation involves interviewing witnesses, whether corporate-employee witnesses, outside consultants, or independent, third-party witnesses. Corporate counsel must determine whether to document the witness’s interview and, if so, whether by summary memorandum, audio- or video-recording, signed witness statements, or otherwise. The questions become whether documented witness statements are discoverable and how in-house and outside corporate counsel should handle these statements to maximize the potential for protection.
Several issues arise in answering these questions. While the corporate attorney-client privilege may (depending on your jurisdiction) protect counsel’s employee-interview notes, does it also protect a signed an employee’s signed statement? The work-product doctrine, which is a preclusion doctrine rather than an evidentiary privilege, may protect a lawyer’s summary memoranda of witness interviews, but the protection is not absolute and may give way upon a sufficient showing of need. And federal and state civil procedure rules may differ, causing a witness statement to be discoverable in a state forum even if not in a federal forum.
In my article, Protecting Witness Statements from Discovery, recently published by InsideCounsel, I explore all these issues. The article, accessible here, distinguishes the too-often-conflated work-product doctrine and the attorney-client privilege. It also outlines legal arguments for protecting witness statements of corporate employees and independent witnesses, and concludes with a set of practice tips for in-house or outside counsel when dealing with witness interviews. My thanks to InsideCounsel for permission to repost my article in this blog.