Courts take widely varying and sometimes seemingly illogical approaches to work product protection for litigation-motivated witness interview-related documents, such as transcripts, notes, reports, statements, and affidavits.
Here are some practical tips that will apply in many (but not all) courts: (1) documents created early in an investigation or immediately after some incident may involve lawyers' open-ended questions, therefore most likely deserving only fact work product protection; (2) lawyers preparing any interview-related documents can normally assure higher opinion work product protection for their segregated, clearly labeled, and facially obvious opinions — such as their assessment of witnesses' demeanor or credibility, thoughts about how the witnesses' recollection fits into litigation strategy, etc. — but that approach risks forfeiting opinion work product protection for the remainder; (3) the alternative approach of trying to "infuse" entire interview-related documents with opinion might succeed, but risks having courts reject opinion work protection for the entire document; (4) any verbatim witness statements included in lawyer-created documents are less likely to deserve opinion work product protection than lawyers' paraphrasings of or summaries of witnesses' oral statements; (5) lawyers might decide to accept such a risk, if they might later need verbatim statements to buttress helpful witnesses' or challenge unhelpful witnesses' later testimony; (6) lawyers working with witnesses to draft statements or affidavits should assure that their input is obvious in the withheld exchange of drafts, but should also recognize that the final version may not deserve any protection, and that withholding the final version during discovery might prevent the final version’s later use to support motions or at trial.
Lawyers trying to sort through this messy law should always remember that judges frequently read withheld documents in camera. Judges will understandably discount "work product" headers or self-serving statements — but will instead assess whether those interview-related documents on their face actually reflect lawyers' impressions, opinions, or litigation strategy.
Read the previous installments in this series: