Are Attorney’s Notes Safeguarded For the duration of An Inner Investigation

Are Attorney’s Notes Safeguarded For the duration of An Inner Investigation


Image this: you are on-web page at a new client’s headquarters for a weeklong hostile work natural environment investigation into a number of inner grievances designed from the CEO and CFO. This is the initially engagement for the client so you want to do as comprehensive a career as probable to go away a positive first impact (which will with any luck , also lead to important supplemental function). Importantly, your suggestions at the summary may possibly lead to terminations, as properly as subsequent lawsuits from either the purported victims and/or the terminated executives. There’s evidently a whole lot at stake in this article.

As of now, you have at minimum 15 witnesses to job interview, but there will likely be lots of more that organically grow out of the investigation, which usually happens. As you start out your marathon of interviews and feverishly jot down each and every pertinent phrase the witnesses inform you, you can relaxation confident that long run opposing counsel, jurors, and plaintiffs will by no means see your notes, suitable? Definitely, they would hardly ever be turned over in discovery or develop into a deposition or trial exhibit, would they? Effectively, as the normal lawyer reaction goes – it depends.

Legal professional Perform Item Doctrine

The standard rule, mostly codified in Federal Rule of Civil Method 26(b)(3), is that the attorney do the job merchandise doctrine frequently prohibits the discoverability of components an adversary prepares in “anticipation of litigation”. This helps make perception considering the doctrine aims to deliver attorneys with the privateness we want to think, plan, weigh points and evidence, candidly evaluate a client’s circumstance, and devise lawful theories.

There are two varieties of operate solution: simple fact or “non-main,” which is made up of factual info resulting from a factual investigation and “opinion,” which contains the lawyer’s psychological impressions, conclusions, views, or authorized theories. The latter gets just about complete protection and is generally discoverable only when a bash displays “extraordinary justification.”  Conversely, reality do the job product or service may well be discoverable if it (1) includes only non-privileged info, and (2) the requesting get together satisfies the significant have to have and undue hardship things.

Information and Viewpoints Intertwined: Are My Notes Discoverable?

You may possibly be pondering, “What happens if my notes contain the two facts and my views?” In that situation, a court docket should privately study no matter if the points may be disclosed in a redacted model with no revealing your viewpoints.  Notably, at the very least a single courtroom has stated that “where the factual and impression operate merchandise are so intertwined . . . that it is not possible to segregate and disclose the purely factual part,” the doc should be protected as opinion work product.  While this is not the regulation of the land, it is important to periodically evaluation your take note-having as you perform witness interviews.


Let us return to your investigation of the client’s CEO. If you are getting down contemporaneous notes of a witness’ recollection and/or responses to questioning  – without the need of such as your opinions, these factual notes are probable discoverable. Nevertheless, if a court establishes that the facts are sufficiently intertwined with your opinions, mental impact, etc. (i.e., a assertion this sort of as “this witness is being inconsistent and would not be credible throughout deposition or trial)  such that it is difficult to separate the two, then the attorney function merchandise doctrine would probable protect your notes from disclosure. At the exact same time, however, a single state’s Supreme Court (North Carolina) has not too long ago held that some communications among an legal professional and consumer pertaining to an interior investigation may not be privileged if all those communications replicate “business” suggestions as opposed to “legal suggestions.” As one can see, note-using and navigating legal privilege is each an art and a ability.

Jackson Lewis P.C. © 2022
National Regulation Assessment, Quantity XII, Quantity 245