Lawyers’ Witness Interview Notes Can Deserve Opinion Work Product Protection

July 10, 2019

Litigants often seek to assert opinion work product protection for their litigation-related documents – because the opinion work product doctrine gives the documents absolute or nearly absolute protection. This contrasts with regular work product protection, which adversaries can overcome in certain circumstances.

In Stevens v. Brigham Young University-Idaho, Case No. 4:15-cv-00530-BLW, 2019 U.S. Dist. LEXIS 59435 (D. Idaho Apr. 4, 2019), plaintiff suing BYU sought an in-house lawyer’s notes of an important witness interview. The court found that the interview notes deserved opinion work product protection, because “[b]y choosing what details to record and what details to omit, [BYU’s lawyer] implanted her mental impressions in her notes, thereby making them opinion work product.” Id. at *5. The court emphasized that the notes “are not a verbatim transcript of [the lawyer’s] interview. Id. Several days later, the court in Cicil (Beijing) Science & Technology Co. v. Misonix, Inc., came to the same conclusion about Morgan Lewis lawyers’ notes – which were not “recordings, transcripts, or other verbatim recitations of the interviews,” but instead “reflect the questions counsel chose to ask and [their] mental impressions and opinions.” No. 17-CV-1642 (ADS) (SIL), 2019 U.S. Dist. LEXIS 62764, at *32 (E.D.N.Y. Apr. 11, 2019) (alteration in original).

While this widely accepted view makes sense, these and other courts’ implicit rejection of opinion work product protection for verbatim transcripts does not. Such verbatim transcripts should deserve opinion work product protection if they memorialize lawyers’ specific and opinion-laden questions and witnesses’ responses.