Lawyers' communications with the third parties generally cannot deserve privilege protection, but what about work product protection?
In Booth v. Galveston Cty., Civ. A. No. 3:18-CV-00104, 2018 U.S. Dist. LEXIS 181063 (S.D. Tex. Oct. 10, 2018), the court addressed work product protection for emails between plaintiffs' lawyer and two fact witnesses. The court acknowledged that "[a]t first blush, it might be inconceivable how documents exchanged with a third-party can fall within the sphere of privileged status." But then the court explained that "[i]f a written statement made by a third-party witness is covered by the work-product privilege, it is hard to imagine why an email exchange between counsel and a third-party witness providing the same information would not be protected by the same privilege." The court therefore protected the emails as work product, because they were "created for litigation purposes."
Most courts would also protect the "intangible" work product reflected in any similar oral communications between lawyers and fact witnesses. Next week's Privilege Point will address possible privilege and work product protection for lawyers' reports to their clients about such third party communications.