Companies' lawyers frequently interview third-party witnesses. Companies' adversaries often seek the resulting interview transcripts, notes, summaries, reports, statements or affidavits — which can generate disputes over fact and opinion work product protection. The former can be overcome, so companies usually seek the absolute or nearly absolute opinion work product protection. Three federal court decisions issued over seven days in May highlight the confusing and divergent case law governing work product protection for interview-related documents.

In Hatamian v. Advanced Micro Devices, Inc., securities fraud defendant AMD moved to compel production of plaintiffs' investigator's "notes of interviews with confidential witnesses [former AMD employees], including 'Interview Reports.'" Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *4 (N.D. Cal. May 6, 2016). Plaintiffs called these documents "'classic work product,'" but AMD argued that the documents were unprotected "'verbatim recitation[s] of each witness's factual statement,'" without "'any attorney's mental impressions.'" Id. at ¶ 8 (internal citation omitted). The court held that "[i]nterview notes and witness summaries drafted by counsel are subject to attorney work product protection." Id. The court then indicated that interview notes "can be either factual work product, opinion work product, or both" — explaining that "[t]o the extent that the investigator's contemporaneous notes and interview reports reflect only verbatim witness statements, they are only factual work product." Id. at ¶ 18. Because the court concluded that defendant could not overcome the fact work product protection for the investigator's interview notes and reports, it did not have to decide if those documents deserved the more protective opinion work product protection.

This widely accepted approach does not make much sense. Interview notes or reports reflecting a witness's verbatim answer to a question such as "tell me what you know" presumably would deserve only fact work product protection. But the witness's verbatim answers to a long series of pointed and focused questions would seem to deserve opinion work product protection, if they reflect the interviewer's strategy. Next week's Privilege Point will discuss another federal case decided four days later.