Last week’s Privilege Point described a court’s review of a lawyer’s conversation with a witness and its conclusion that none of the conversation deserved the heightened opinion work product protection. LaBudde v. Phoenix Ins. Co., No. 7:21-CV-197-FL-BM, 2025 U.S. Dist. LEXIS 3851 (E.D.N.C. Jan. 8, 2025).
On the same day, the court in SEC v. Princeton Alternative Funding, LLC, Civ. No. 21-12971 (RK)(JBD), 2025 U.S. Dist. LEXIS 3553 (D.N.J. Jan. 8, 2025), took a more expansive view. Defendant sought SEC lawyers’ interview notes “either verbatim or in substance” — but “exclusive of mental thought processes, observations, or comments.” Id. at *4 n.1. The court held that all of the SEC lawyers’ notes deserved “core opinion product” protection because “questions that the attorneys posed [reflect] their legal and investigative strategy in the selection of topics to cover, the order in which they were covered, and the framing of the questions.” Id. at *10-11. In other words, an adversary can’t try to overcome a litigant’s work product protection by saying that they just seek the interview notes’ factual portions — “because the attorney’s mental processes and conclusions are suffused throughout.” Id. at *8-9.
This critical difference between courts’ approaches should spur lawyers to check the pertinent court’s decisions. And wise lawyers might hedge their bets by segregating and clearly infusing with their opinions potentially harmful observations about witnesses’ recollections, demeanor, usefulness as a witness, etc.