Litigators frequently interview fact witnesses in pending or anticipated litigation settings. Their interview notes normally deserve fact work product protection, but that can be overcome if the witnesses disappear or their memories fade. So lawyers often seek the heightened protection courts give “opinion” work product.
In LaBudde v. Phoenix Insurance Co., No. 7:21-CV-197-FL-BM, 2025 U.S. Dist. LEXIS 3851 (E.D.N.C. Jan. 8, 2025), a North Carolina resident seeking insurance coverage after hurricane damage recorded his interview with a third-party estimator service. When defendant sought the recording, plaintiff claimed opinion work product protection for “any reference to his attorneys’ mental theories or impressions.” Id. at *22 (internal citation omitted). After conducting an in camera review of the recording and transcript of the conversation, the court held that it “does not find that any portions of the [recording] contain ‘legal theories or impressions’ or otherwise constitute opinion work product.” Id. at *28. The court then held the defendant could overcome plaintiff’s mere fact work product protection and ordered the recording produced.
On the same day, another federal court took a dramatically different approach that provides much more protection to such witness interviews. Next week’s Privilege Point describes that case, and another option lawyers might consider.