Circuit Court Takes a Broad View of the Work Product Doctrine Protecting Lawyers’ Witness Interview Notes

July 5, 2000

Courts usually protect a lawyer’s witness interview notes as work product if the lawyer prepares the note in connection with or in reasonable anticipation of litigation. Courts normally grant the higher protection due “opinion” work product to portions of a lawyer’s memorandum that provides the lawyer’s mental impressions about the witness, issues the witness has raised, etc.

The Eighth Circuit Court of Appeals recently took a broad view of the “opinion” work product protection by holding that all of a lawyer’s witness interview notes “reveal an attorney’s legal conclusions because, when taking notes, an attorney often focuses on those facts that she deems legally significant.” Baker v. General Motors Corp., Nos. 99-1731 and 99-2002, 2000 U.S. App. LEXIS 6828, at *7-8 (8th Cir. Apr. 14, 2000).

Lawyers preparing memoranda about witness interviews should be aware of the work product doctrine applicable in their jurisdictions, and take advantage of any judicial decisions offering the heightened protection given “opinion” work product.