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Nearly all courts extend fact work product protection to notes
that a lawyer or other client representative takes while
interviewing a witness. Courts generally provide the higher level
of opinion work product to any portion of such notes articulating
the lawyer's impressions about the witness's demeanor,
credibility, usefulness, etc.
Can a lawyer argue that all of her notes deserve the higher
opinion work product protection, because they inherently reflect
what the lawyer thought was important enough to ask or write down?
In SEC v. Nadel, No. CV 11-215 (WFK) (AKT), 2012 U.S.
Dist. LEXIS 53173, at *18 (E.D.N.Y. Apr. 16, 2012), Judge Tomlinson
acknowledged that "[c]ourts have reached different results in
deciding whether notes taken during witness interviews are fact or
opinion work product." The court ultimately found that the
notes deserved opinion work product protection, explaining that
"in a situation like this, disclosure of the questions asked
may reveal the attorney's thought processes." Id.
at *22. The court also noted that "[d]uring the interviews,
the [SEC] attorneys would at times indicate to the staff members
that they should take note of particular statements made by the
witnesses that the attorneys felt were particularly
important," and that "[s]ome of the notes also contain
underlining, the disclosure of which would reveal what the staff
note takers and/or attorneys felt was important information."
Id. at *21, *22.
It is always worth looking for ways to establish opinion work
product protection, which ordinarily provides absolute or nearly
absolute protection. In contrast, fact work product can be overcome
– if the adversary proves "substantial need"
for the work product and the inability to obtain the
"substantial equivalent" without "undue
hardship." Fed. R. Civ. P. 26(b)(3)(A)(ii).
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