Litigants generally must identify people who might have pertinent knowledge, but will they be compelled to identify which of those people they have interviewed as potential witnesses? Courts go both ways.

The court in Electronic Data Systems Corp. v. Steingraber, No. 4:02 CV 255, 2003 U.S. Dist. LEXIS 11816 (E.D. Tex. June 27, 2003) faced this issue. The court acknowledged that “[b]oth parties cite non-binding case law in support of their respective positions,” but concluded after some analysis that “revealing the identity of witnesses interviewed would permit opposing counsel to infer which witnesses counsel considers important, thus revealing mental impressions and trial strategy.” Id. at *5, 6. The court also rejected an argument that the adversary had “substantial need” of the list, explaining that the parties claiming work product protection listed only 59 potential witnesses—all of whom the adversary could interview or depose. Id. at * 7 .

Given the uniformity of the federal work product rule, it is surprising that courts would disagree about such a fundamental issue. The continuing debate shows the importance of lawyers familiarizing themselves with the pertinent court’s attitude.

Litigants generally must identify people who might have pertinent knowledge, but will they be compelled to identify which of those people they have interviewed as potential witnesses? Courts go both ways.

The court in Electronic Data Systems Corp. v. Steingraber, No. 4:02 CV 255, 2003 U.S. Dist. LEXIS 11816 (E.D. Tex. June 27, 2003) faced this issue. The court acknowledged that “[b]oth parties cite non-binding case law in support of their respective positions,” but concluded after some analysis that “revealing the identity of witnesses interviewed would permit opposing counsel to infer which witnesses counsel considers important, thus revealing mental impressions and trial strategy.” Id. at *5, 6. The court also rejected an argument that the adversary had “substantial need” of the list, explaining that the parties claiming work product protection listed only 59 potential witnesses—all of whom the adversary could interview or depose. Id. at * 7 .

Given the uniformity of the federal work product rule, it is surprising that courts would disagree about such a fundamental issue. The continuing debate shows the importance of lawyers familiarizing themselves with the pertinent court’s attitude.