Discovering the Fruits of an Adverse Lawyer’s Factual Investigation

April 25, 2001

Many lawyers have the vague notion that the work product doctrine will protect the fruits of their factual investigation conducted in anticipation of litigation or for trial. However, the work product doctrine actually protects only a portion of what lawyers prepare in those circumstances.

A recent decision bluntly stated that “a party clearly cannot refuse to answer interrogatories on the ground that the information sought is solely within the knowledge of her attorney.” This is true “even though these facts have not been transmitted to the party.” Axler v. Scientific Ecology Group, Inc., 196 F.R.D. 210, 212 (D. Mass. 2000)(citations omitted). This means that the facts uncovered by a lawyer conducting a pretrial investigation must normally be disclosed to the adversary, although the lawyer’s opinion work product (such as a compilation of, or an analysis of, such information) deserves a higher level of protection.

This rule is counter-instinctual, and it therefore is not surprising that both sides in litigation sometimes fail to make such disclosures that would normally be required by the federal rules. Litigators pursuing or resisting discovery should remember this general principle.