Does the Opinion Work Product Doctrine Protect the Identity of Witnesses a Litigant Chooses to Interview?

May 16, 2007

Most courts apply the opinion work product doctrine beyond documents that contain or reflect a client representative’s opinion. At the far edge of the opinion work product doctrine, courts disagree about the protection’s applicability to such information as the identity of witnesses that a litigant’s lawyer has interviewed.

In Norflet v. John Hancock Financial Services, Inc., Civ. No. 3:04cv1099 (JBA), 2007 U.S. Dist. LEXIS 8410 (D. Conn. Feb. 5, 2007), the court ordered plaintiff to reveal the identity of two former John Hancock agents whom the plaintiff interviewed before filing her lawsuit. The court explained that “[t]he disclosure of the identities of the two former agents of John Hancock will provide little, if any, insight into plaintiff’s counsel’s trial strategy and/or mental impressions.” Id. at *10. The court also noted that the Federal Rules required the plaintiff to identify all witnesses with knowledge. One day later, another federal court reached the opposite conclusion. In Lamer v. Williams Communications, LLC, No. 04-CV-847-TCK-PJC, 2007 U.S. Dist. LEXIS 8585 (N.D. Okla. Feb. 6, 2007), the plaintiff resisted identifying witnesses from whom the plaintiff had obtained affidavits. The court agreed, explaining that “even mere disclosure of the names of non-party witnesses Plaintiff’s counsel has interviewed would represent an invasion of counsel’s mental impressions and strategies.” Id. at *6.

Defendants should not assume that a plaintiff will automatically have to identify witnesses that the plaintiff’s lawyer has interviewed.