In-house lawyers frequently play the lead role in gathering information for inclusion in their corporate clients’ interrogatory answers. Not surprisingly, they sometimes also verify the interrogatory answers as the corporate representative most familiar with the information.
In Tailored Lighting, Inc. v. Osram Sylvania Products, Inc., 255 F.R.D. 340 (W.D.N.Y. 2009), defendant Sylvania sought to prevent the deposition of its former Chief Intellectual Property Counsel, who had verified the company’s answers to interrogatories in a case brought by plaintiff Tailored Lighting. The court cited the Second Circuit standard for deposing an adversary’s lawyer (which provides somewhat less protection than the majority rule), and allowed the deposition to proceed. However, the court held that the work product doctrine protected the lawyer’s “thought processes concerning whom and what documents to consult in investigating [plaintiff’s] interrogatories . . . [and] his deliberations about what information to include and what to exclude in the answers.” Id. at 345.
Although the court’s limitation provides some protection, Sylvania could have avoided the nightmarish task of analyzing each deposition question if it had arranged for a nonlawyer to verify its interrogatory answers.