Facts and events normally do not deserve work product protection. But a lawyer’s careful selection of such facts or important events sometimes may reflect his or her strategic assessment or litigation planning. For example, litigants obviously must identify witnesses with pertinent knowledge. But can an adversary ask which of such witnesses a litigant’s lawyer thought important enough to interview?
In Glenn v. City of Hammond, Cause No. 2:18-CV-150-TLS-JEM, 2023 U.S. Dist. LEXIS 107642 (N.D. Ind. June 21, 2023), defendant sought a list of the witnesses plaintiffs and their lawyer had interviewed. Citing an earlier case, the court understandably explained that the identity of such witnesses would “inevitably teach the requesting party which individuals opposing counsel considers more or less valuable as witnesses and how he or she is preparing for trial.” Id. at *11 (citation omitted). With this common sense notion in mind, the court wisely ordered plaintiffs to provide “a list of only the witnesses the Plaintiffs themselves specifically interviewed with respect to the instant lawsuit.” Id. at *16. In other words, that list would not include just the witnesses plaintiffs’ lawyer chose to interview.
This type of pragmatic analysis highlights what courts often call the work product doctrine’s “intensely practical” nature.