Decision Highlights the Critical Role of Timing in Connection with Work Product Protection

September 26, 2012

In most situations, clients and their lawyers intend to maintain forever the confidentiality of their privileged communications. In contrast, lawyers often intend to ultimately disclose much of their work product – in the form of court-ordered exchanges of witness and exhibit lists, deposition transcript designations, proposed findings of fact, etc. Such information normally deserves opinion work product protection until the parties agree to, or the court orders the litigants to, exchange the information.

Contention interrogatories highlight this principle. In Spadaro v. City of Miramar, Case No. 11-61607-CIV-COHN/SELTZER, 2012 U.S. Dist. LEXIS 103278, at *3 (S.D. Fla. July 25, 2012), the plaintiff objected to the defendant’s contention interrogatories, “which were designed to elicit facts supporting many of Plaintiff’s contentions in the Amended Complaint.” The plaintiff claimed that the contention interrogatories sought protected work product. The court disagreed, noting that “[n]umerous courts have rejected the proposition that interrogatories which seek material or principal facts that support a party’s allegations violate the work product doctrine.” Id. at *8.

Every court recognizes that a litigant must eventually disclose the facts that support its contentions. The only issue is when that disclosure obligation arises. Most courts allow litigants to wait until they finish or substantially finish discovery, and then impose the same disclosure obligation on both sides.