Beware the Pitfalls of Pre-Litigation Investigation and Reliance on the Attorney-Work Product Doctrine

May 2, 2012

USLAW Magazine

The following is an excerpt from, "Beware the Pitfalls of Pre-Litigation Investigation and Reliance on the Attorney-Work Product Doctrine," originally published in the Spring/Summer 2012 issue of USLAW Magazine.

Although it is increasingly becoming the custom of clients and their insurance carriers to engage consultants to obtain facts, assess potential liability, and develop defense theories before or after a lawsuit has been filed, these reports and assessments may be susceptible to discovery in civil litigation. Understanding what is protected by the attorney work product doctrine and what is discoverable is key to structuring pre-litigation investigations. The following hypotheticals illustrate how the attorney work product privilege comes into play.

The first scenario involves an employer and its attorneys who are threatened with a sexual harassment lawsuit based on a hostile work environment theory. The employer and its attorneys conduct a preliminary investigation; the employer takes detailed notes of the interviews with the other employees, reciting verbatim statements made. The former employee then initiates a lawsuit and plaintiff demands production of the investigative file which includes the statements of its employees. Opposing counsel then sends interrogatory requests, asking for all written information relating to the plaintiff. Whether an employer’s counsel invokes the work product privilege when refusing to hand over the employee statements depends on the jurisdiction you are in and what the interview notes contain.

For the full article, please use the following link: Beware the Pitfalls of Pre-Litigation Investigation and Reliance on the Attorney-Work Product Doctrine.