When Are Witness Statements Protected As Attorney Work Product?

One of the first things an attorney does when representing a client in a particular matter is interview witnesses to learn the facts of the case, or have an investigator do such on their behalf. The attorney will almost always document the witness interviews by creating written records of such, or preserve them in another form, such as recordings. When doing so, the attorney may include his/her own comments and thoughts.

What happens when an opposing party in litigation seeks to discover such statements? Are they protected from disclosure by the attorney work product privilege? Or may an opposing party obtain such, by order of the court if necessary?

The answer is not as simple as it may seem.

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