On its face, the federal work product protection doctrine and its state equivalents protect only “documents and tangible things.” Fed. R. Civ. P. 26(b)(3). However, most courts also extend the protection to oral testimony in certain circumstances. This issue usually comes up in depositions, when the adversary’s lawyer asks the deponent to recount the substance of conversations that would be protected by the work product doctrine if they had been written down.
In one recent case, a federal district court agreed that oral statements taken from witnesses deserved the work product doctrine’s protection. Hildebrand v. Wal-Mart Stores, Inc., No. 3:98 CV 2520 (JGM), 2000 U.S. Dist. LEXIS 6624, at *5 (D. Conn. Apr. 10, 2000).
Litigators should be familiar with decisions in the applicable jurisdictions, and be prepared to assert the work product doctrine protection at the appropriate time in depositions or elsewhere.