Are Attorney’s Notes Protected During An Internal Investigation

Introduction

Picture this: you are on-site at a new client’s headquarters for a weeklong hostile work environment investigation into several internal complaints made against the CEO and CFO. This is the first engagement for the client so you want to do as comprehensive a job as possible to leave a positive first impression (which will hopefully also lead to significant additional work). Importantly, your recommendations at the conclusion may lead to terminations, as well as subsequent lawsuits from either the purported victims and/or the terminated executives. There’s clearly a lot at stake here.

As of now, you have at least 15 witnesses to interview, but there will likely be many more that organically grow out of the investigation, which often happens. As you start your marathon of interviews and feverishly jot down every pertinent word the witnesses tell you, you can rest assured that future opposing counsel, jurors, and plaintiffs will never see your notes, right? Certainly, they would never be turned over in discovery or become a deposition or trial exhibit, would they? Well, as the typical lawyer response goes – it depends.

Attorney Work Product Doctrine

The basic rule, largely codified in Federal Rule of Civil Procedure 26(b)(3), is that the attorney work product doctrine generally prohibits the discoverability of materials and adversary prepares in “anticipation of litigation”. This makes sense considering the doctrine aims to provide lawyers with the privacy we need to think, plan, weigh facts and evidence, candidly assess a client’s case, and devise legal theories.

There are two types of work product: fact or “non-core,” which contains factual information resulting from a factual investigation; and “opinion,” which includes the lawyer’s mental impressions, conclusions, opinions, or legal theories. The latter receives virtually absolute protection and is typically

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