Does the Work Product Doctrine Protect the Identity of Witnesses?

March 12, 2003

Normal discovery rules require a litigant to reveal the identity and location of witnesses who may have discoverable material. Do those normal rules also require the litigant to provide such information about witnesses that the litigant has interviewed about the case?

In In re MTI Technology Corp., No. SACV 00-0745 DOC (ANx), 2002 U.S. Dist. LEXIS 13015, at *8 (C.D. Cal. June 14, 2002), the court distinguished between the identity of witnesses with discoverable information, and the identity of witnesses that a litigant has interviewed. The court explained that selection of witnesses for interviews would allow the adversary to “infer which witnesses counsel considers important, revealing mental impressions and trial strategy.” In In re Ashworth, Inc. Securities Litigation, No. 99cv0121 L (JAH), 2002 U.S. Dist. LEXIS 14971 (S.D. Cal. Aug. 6, 2002), the court similarly protected the identity of the defendant’s current or former employees who had been interviewed by a securities plaintiff’s lawyer.

Because not all courts take this broad approach, litigants would be wise to articulate in some contemporaneous document how their selection of witnesses for interview reflects their opinions.