Be Wary When Seeking to Protect Communications With the Work Product Privilege

While the attorney-client privilege only protects confidential communications between an attorney and client that are for the purpose of giving or receiving legal advice, the work product doctrine, as codified in Fed. R. Civ. P. 26(b)(3),  is much broader:

Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) ….

Further, given that the work product privilege is designed to protect an attorney’s mental impressions, federal common law has extended work product protections to verbal communications even if they are not memorialized in documents and/or in other tangible ways. Having said that, however, as the Northern District of California recently discussed in Schenwick v. Twitter, assuming that the work product privilege will protect your attorney’s communications with a non-party can be a risky proposition.

In Schenwick, the plaintiff’s representative interviewed several “confidential” witnesses prior to filing suit, and the defendants sought to discover what was said in those interviews. Defendants objected based on the work product privilege, and the Norther District of California made three underlying rulings that appeared to drive its decision that the work product doctrine could not protect the plaintiffs’ interviews from disclosure.  First, the court noted that, like the attorney-client privilege, the work product privilege can be waived if not protected properly. Second, the court observed that claims of work product in the context of third-party interviews are strongest where there is a common interest between the party and the third-party. Third, the court found that the third-parties in this case were not asked to enter into any confidentiality agreement prior to being interviewed and, therefore, nothing prevented them from disclosing the contents of those interviews at their sole discretion.

The obvious take-aways from Schenwick are that if you are going to interview witnesses in anticipation of litigation and/or trial, you should try to obtain their signatures on an agreement that (i) explains how your client and the witness have a common interest, and (ii) states that the third-party will not disclose anything discussed during the interview. In addition, however, Schenwick also suggests some more subtle reminders. First, have any witness interview conducted by a licensed attorney and have that attorney take notes of the interview, as opposed to recording it and/or having it transcribed by a stenographer. While this may seem to be form over substance, a judge simply is much less likely to order an attorney’s notes be turned over to an opposing party than she is to order disclosure of an audio or transcribed recording of the interview. Second, do not forget about the attorney-client privilege. There are a variety of cases where the attorney-client privilege was upheld even where the communications at issue were not with current employees of a party/company. (Click here for In-House Advisor posts on the attorney client privilege.) Thus, you may be able to position the interview so as to have an argument that the attorney-client privilege arguably applies.

While the work product privilege can be a useful and important tool to protect information from disclosure, it is far from fool-proof. Thus, it always is a good idea to consider other options and not put all of your confidential eggs in a work product basket.

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