Litigants obviously must identify all witnesses with potentially relevant knowledge about litigated issues. But can litigants claim work product protection for the identity of the subset of those witnesses that their lawyers choose to interview?
As with so many other work product issues, courts disagree. In United States v. All Assets Held at Bank Julius Baer & Co., the court ultimately held that the work product doctrine protected such interviewees' identities, because forcing disclosure of their identities would reveal how the litigant and his lawyer "choose to prepare their case." Civ. A. No. 04-798 (PLF/GMH), 2017 U.S. Dist. LEXIS 147894, at *11 (D.D.C. Sept. 13, 2017) (citation omitted). The court acknowledged that the question "remains unsettled." Id. at *7. And in a refreshing moment of candor, the court explained that "[i]ndeed, in this Court alone, there is a partial split among its members over whether the names of individuals that a party has interviewed in preparation for litigation [are] protected under work-product privilege." Id. at *7-8.
Corporate litigants may not know how the work product doctrine will apply to their lawyers' activities until they know what court will handle their case – and even what judge will hear their case.