In SFEG Corp. v. Blendtec, Inc., No. 3:15-0466, 2016 U.S. Dist. LEXIS 63738 (M.D. Tenn. May 13, 2016), plaintiff's lawyer interviewed defendant's former quality manager — taking interview notes, preparing a memorandum about the interview, drafting and later revising a proposed affidavit, and then arranging for an executed affidavit. Defendant sought the executed affidavit. The court noted that "there appears to be a split of authority among [Sixth Circuit] district courts on the issue." Id. at *5. Some courts hold "that a third party's affidavit, once signed by the affiant, is no longer attorney work product as a matter of law." Id. The other line of cases extend work product protection to affidavits lawyers prepare after an interview, because "the contents of that affidavit almost certainly will reveal 'the mental impressions, conclusions, opinions, or legal theories' of the lawyer." Id. (citation omitted). The court adopted the second approach — concluding that lawyers "almost certainly included in this draft affidavit those facts that counsel deemed significant to the legal theories applicable to the case." Id. at *6. Furthermore, "the character of such disclosure is not somehow changed at the moment the witness signs the affidavit." Id. at *7. But then the court inexplicably addressed whether defendant could overcome the applicable work product protection — thus apparently only extending fact rather than the stronger opinion work product protection to the executed affidavit.
It is difficult if not impossible to find consistent and useful principles from these and similar cases. Next week's Privilege Point will offer some practical guidance.