Does the Work Product Doctrine Protect the Identity of Witnesses That a Party Has Interviewed?

July 16, 2008

The work product doctrine can sometimes protect a lawyer’s selection of certain documents, interviewees, etc., out of a universe of documents, interviewees, etc., equally available to the adversary. Courts granting this protection note that the selection might provide some insight into the lawyer’s opinions, and that the adversary should make its own selections rather than “piggybacking” on the lawyer’s judgment. Courts denying the protection sometimes conclude that the selection of interviewees would not provide much insight into the lawyer’s opinions.

As in other areas, different facts lead to different results. In Tracy v. NVR, Inc., No. 04-CV-654IL, 2008 U.S. Dist. LEXIS 37437 (W.D.N.Y. May 7, 2008), the Western District of New York held that a defendant did not have to identify the witnesses it interviewed. The same day, the Eastern District of New York upheld a magistrate judge’s order requiring a plaintiff to identify witnesses he had interviewed. Wilson v. City of New York, No. 06-CV-229 (ARR)(VVP), 2008 U.S. Dist. LEXIS 37839 (E.D.N.Y. May 7, 2008).

Lawyers should be ready to seek work product protection for their selections, but not expect to win every fight.