Decisions Highlight the Importance of Lawyers Documenting the Basis for a Work Product Claim: Part I

November 30, 2011

Clients and lawyers should remember the logistics of a privilege dispute. A litigant withholding any responsive documents will have to describe them on a privilege log. If the adversary cannot overcome the litigant’s privilege claim based on the log descriptions, the court or some special master ultimately will have to read the withheld documents. Two recent cases decided four days apart highlight lawyers’ power to increase the odds of success in such a dispute. This Privilege Point discusses one of these cases, and the next two will discuss the other.

In Ryskamp v. Looney, Civ. A. No. 10-cv-00842-WJM-KLM, 2011 U.S. Dist. LEXIS 105438 (D. Colo. Sept. 16, 2011), the plaintiff sought witness interview memoranda prepared by Paul Hastings lawyers. The court found the work product doctrine inapplicable, noting that “[u]pon in camera review, the Court finds that the subject Interview Memoranda do not contain any mental impressions, conclusions, opinions, or legal theories of any attorney from the Paul Hastings law firm.” Id. at *4. Although the court seemed to erroneously conclude that the absence of opinion work product meant that the memoranda did not deserve any protection at all, the court’s holding provides a good lesson for all lawyers. If the Paul Hastings lawyers had included within their memoranda such protected opinions (and articulated the presence of their opinions), the court might have ruled the other way.

While lawyers obviously cannot concoct an unavailable protection, they can explicitly include impressions, conclusions, opinions, etc., in a witness interview memorandum. Courts normally will allow redaction of such opinions – and might well protect the entire document if the lawyer explains in the document that her choice of what to memorialize from the interview reflects her opinions about the interview. The next two Privilege Points will focus on similar issues, which arose in connection with two incident reports following an accident.