Lawyers’ Selection of Certain Documents for a Client’s Deposition Preparation May Be Protected Work Product

August 2, 2001

Litigators often prepare their clients for depositions by reviewing selected documents ahead of time. Is the adversary entitled to know which documents the lawyer selected to review with the client?

One recent decision indicated that a lawyer’s selection of certain documents to review with the client before a deposition amounted to opinion work product that would not have to be revealed to the adversary taking the deposition. In Carfagno v. Jackson Nat’l Life Ins. Co., No. 5:99cv 118, 2001 U.S. Dist. LEXIS 1968 at *25 (W.D. Mich. Feb. 13, 2001), the court ordered the party withholding the information to supply an affidavit “identifying the source of documents reviewed in preparation for their depositions. If it turns out that the only documents reviewed were those compiled by defense counsel, the court will sustain a work-product objection.”

Litigators preparing their clients for deposition should obviously know whether the court in which they are litigating shares this approach.