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March 12 Work Product
Review • R. 35 – Can request a physical or mental examination of opponent if his/her condition is in controversy and you have good cause for the request. Person examined may get a copy of the examiner’s report, but in doing so, waives any privileges he/she has with regard to reports past/present/future for the same/similar condition.
Class Outlines • Discussion of doing Outlines for this class
Attorney Client Privilege – Brief Overview • Confidential communications between attorney and client made for the purposes of obtaining legal representation are privileged. • Corporations – privilege now extends to low level employees if employees knew communications were for purpose of corporation obtaining legal advice and communications kept confidential. At time of Hickman – only communications between “control group” (corporate decision makers) and attorney were privileged.
HICKMAN V. TAYLOR (SEMINAL CASE) • What are the facts • What information was sought • Was it relevant • Was it privileged under the attorney/client privilege
Hickman reasoning • What are all the policy reasons underlying the court’s decision • What is the court balancing • How does it achieve that balance • What’s the new rule that Hickman announces
Rule 26b3 codifies Hickman (and slightly expands upon it) Break down the elements you must address in a Rule 26b3 problem
What is it • Explain to a neighbor – what is work product.
Is the following work product • A signed witness statement given to an attorney investigating a crash. • Why would that be/not be work product?
How far can you go? • Does work product protect facts learned in investigation? If not, how do you learn those facts? (e.g. P sends an interrogatory asking for information about the working condition of the boat; the lawyer discovered that information through his investigation – can he refuse to answer that interrogatory on the ground that it is work product) • Is the work product privilege absolute? If not, how can you obtain your opponent’s work product?
Query • In Hickman, Fortenbaugh interviewed the witnesses and took notes but did not ask the witnesses to write out statements or tape recorded the witness’ statements. (Common lawyer practice – you use notes to help prep your examination or cross exam). Are the lawyers’ notes discoverable?
query • If Fortenbaugh had interviewed the crew members in the hospital and they had died before giving their testimony, would F have to produce his notes of those interviews? • What if the crew members were still alive but there had been no public hearing and the witnesses now claim they cannot recall the events clearly?
P is hurt when struck by a bus owned by B Bus Co. P sues B • Right after the wreck, B’s vice president went to the scene and made a full investigation, including interviews with witnesses and measurements of the accident location. He then made a written report to the directors of B. Can P obtain the report? [Analyze based upon each element in 26b3] • Would it make any difference if B has a claims department and the vice president is “attached to that department”
hypo • Through the expenditure of more than $10,000, B’s attorney has uncovered another eyewitness to the accident. P serves an interrogatory asking for the names of all eyewitnesses and B objects on the ground of “trial preparation material”. Must Be disclose the recently discovered witness’ name?
hypo • B is seriously injured in a car wreck with C. State Farm insures C. State Farm sends an agent to the hospital to interview B. B thinks he gave a videotaped statement to the agent and knows he talked to the investigator about the wreck. As B’s attorney, can you: a. discover whether B gave such a statement; obtain a copy of the statement before B’s deposition; and c. If B did not give a statement, can you find out what he told the agent?
hypo • In B’s suit v. C, Frank, B’s friend, will testify. Frank gave a written signed statement to C’s attorney but does not remember what he said. As attorney for B, can you obtain the statement? How?
hypo • Plaintiff claims person injuries in a bus crash. Defendant assigns an investigator to film plaintiff scuba diving while on vacation. Plaintiff seeks both the film and the investigator’s report? Must the defendant produce them?
Question 6 p. 445 • Can you object to a contention interrogatory (e.g. state all the ways in which you contend defendant was negligent) on the ground that it seeks work product?
Query • Is the following work product? Is it discoverable? • A. A verbatim transcript of my interview with an eyewitness to the wreck (e.g. a videotaped recording) • B. My notes from an interview with a now-deceased witness; • C. My notes on my impressions of the witness’ likeablility and honesty • D. My trial strategy notebook (e.g. I will call x witness first and ask them about a, b & c topics, etc) • If there is a distinction between these types of work product what is it and why is one easier to obtain than the other?
query • Assume that you learn information relevant to the claim through witness interviews (i.e. that your client was drinking that night and that it was your client, not her friend, that was driving). If your opponent asks: was your client drinking that night; was your client driving; can you refuse to answer on the ground that the information is protected by the work product privilege?
How does it work • My opponent asks for something I believe is covered by the work product privilege. How should I handle that request? • What if I inadvertently disclose work product, what should I do?
