Litigants frequently ask the adversary to identify facts, witnesses, documents, etc. supporting its claims. Adversaries receiving such discovery requests frequently claim that the answers would reflect their lawyers’ opinions and mental impressions, and therefore deserve protection under the work product doctrine.
Courts properly analyzing the work product doctrine routinely overrule such objections. In Director Dividends, Inc. v. SBC Communications, Inc., No. 01-CV-1974, 2003 U.S. Dist. LEXIS 24296 (E.D. Pa. Dec. 31, 2003), the plaintiff objected to defendant SBC’s interrogatory asking plaintiff to identify documents with relevant data about plaintiff’s damage claim. Plaintiff argued that requiring it to answer the interrogatory was analogous to requiring a lawyer preparing a witness for deposition to identify the particular documents the lawyer used in the preparation. The court rejected the analogy – explaining that the latter type of discovery was aimed solely at learning the opposing lawyer’s opinions, while SBC’s discovery was “trying to uncover the factual basis for Plaintiff’s damages claim, which is the purpose of discovery.” Id. at *8.
Although litigants may frequently delay answering this type of “contention” interrogatories until a later time, they ultimately cannot decline to identify facts, documents or witnesses that support their claim.