To Be (Discoverable), or Not to Be: Notetaking During an Attorney’s Internal Investigation
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 an 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 discoverable only when a party shows “extraordinary justification.” Conversely, fact work product may be discoverable if it (1) contains only non-privileged facts, and (2) the requesting party satisfies the substantial need and undue hardship elements.
Facts and Opinions Intertwined: Are My Notes Discoverable?
You might be wondering, “What happens if my notes contain both facts and my opinions?” In that scenario, a court must privately examine whether the facts may be disclosed in a redacted version without revealing your opinions. Notably, at least one court has stated that “where the factual and opinion work product are so intertwined . . . that it is impossible to segregate and disclose the purely factual part,” the document should be protected as opinion work product. While this isn’t the law of the land, it’s important to periodically review your note-taking as you conduct witness interviews.
Let’s return to your investigation of the client’s CEO. If you are taking down contemporaneous notes of a witness’ recollection and/or responses to questioning – without including your opinions, these factual notes are likely discoverable. However, if a court determines that the facts are sufficiently intertwined with your opinions, mental impression, etc. (i.e., a statement such as “this witness is being inconsistent and would not be credible during deposition or trial) such that it’s impossible to separate the two, then the attorney work product doctrine would likely protect your notes from disclosure. At the same time, however, one state’s Supreme Court (North Carolina) has recently held that some communications between an attorney and client regarding an internal investigation may not be privileged if those communications reflect “business” advice as opposed to “legal advice.” As one can see, note-taking and navigating legal privilege is both an art and a skill.