Most courts provide work product protection for drafts of witness affidavits lawyers prepare in the midst of, or in anticipation of, litigation. But what about final executed witness affidavits? They meet the majority standard for work product protection (they would not exist but for the litigation), but it seems strange to protect notarized recitations of fact intended to be used in litigation.
In Institute for Development of Earth Awareness v. PETA, No. 08 Civ. 6195 (PKC), 2010 U.S. Dist. LEXIS 139098, at *3 (S.D.N.Y. Dec. 30, 2010), Judge Castel found that “executed affidavits of non-party witnesses remained work product until the lawyer elected to serve and file them” – because “[u]ntil the moment of service and filing, the lawyer reserves the right to reverse course and refrain from using the affidavits.” Eleven days later, another federal court took exactly the opposite position. In Arminak & Associates v. Saint-Gobain Calmar, Inc., Case No. 1:10 MC 102, 2011 U.S. Dist. LEXIS 2080, at *6 n.2 (N.D. Ohio Jan. 10, 2011), the court acknowledged that draft witness affidavits deserve work product protection – then noted that “final versions of affidavits prepared by third party witnesses are generally not protected by the work product doctrine.”
Because courts apply their own work product rules, lawyers and clients unfortunately will never know what work product approach will govern until they know where litigation will occur.