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Walking the Line: Sharing Work Product with Testifying Witnesses
Attorneys have an ethical obligation to represent their clients zealously. Deposition preparation is key to that obligation. Preparing testifying witnesses educates and focuses them on important issues and facts of a case. This aside, the law regarding disclosure of work product provided to testifying witnesses is not well settled, and 'there is considerable room within which thoughtful judges can reach different conclusions.' Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 387 (N.D. Cal. 1991). Zealous representation, therefore, requires counsel to walk a line between witness preparation on one side and work product disclosure on the other. In so doing, counsel must also remain mindful of the line that exists between acceptable witness preparation and impermissible influencing of a witness. State v. Earp, 571 A.2d 1227, 1235 (Md. 1990). One misstep may lead to disclosure of counsel's mental impressions and strategy and, possibly, to serious sanctions.
The Work Product Doctrine
The work product doctrine was first announced in 1947 by the U.S. Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). The Court in Hickman recognized the 'general policy against invading the privacy of an attorney's course of preparation.' The Court stressed that the work product doctrine is 'so essential to an orderly working of our system of legal procedure' that 'not even the most liberal of discovery theories can justify unwarranted inquires into the files and the mental impressions of an attorney.' Id. at 512. The doctrine was later fleshed out in Rule 26(b)(3) of the Federal Rules of Civil Procedure, which provides in relevant part:
A party may obtain discovery of documents and tangible things otherwise discoverable ' and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative ' only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
Fact v. Opinion Work Product
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