Co-Worker Testimony In Litigation

Under Utah Rule of Civil Procedure 26(b)(5) and Federal Rule of Civil Procedure  26(b)(3)(A), “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative,” unless, “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.”

Protected work product may include “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways.” Hickman v. Taylor, 329 U.S. 496, 511 (1947). Indeed, many courts have found that documents and testimony pertaining to interviews are subject to the work product privilege. See e.g. In re Appeal of Hughes, 633 F.2d 282, 290 (3d Cir. 1980); Sandra T.E. v. S. Berwyn Sch. Dist. 100, 600 F.3d 612, 622 n.4 (7th Cir. 2010) (“the work-product doctrine would protect any notes from interviews with former employees as equally as it protects notes from interviews with third parties who never worked for the School District.”); Baker v. Gen. Motors Corp., 209 F.3d 1051, 1054 (8th Cir. 2000) (“Discovery of a witness statement to an attorney is generally not allowed if that witness is available to the other party.”) However, where there is substantial need courts may require that the interviews, notes, and related documents be produced. In re John Doe Corp., 675 F.2d 482, 493 (2d Cir. 1982) (holding that where substantial need was shown, notes of interviews had to be produced.) Some Courts have also noted that requiring the disclosure of which witnesses have been interviewed violates the work product privilege as it provides core information and opinion about which witnesses may be critical.  O’Connor v. Boeing N. Am., Inc., 216 F.R.D. 640, 643 (C.D. Cal. 2003) (citing Laxalt v. McClatchy, 116 F.R.D. 438, 443 (D. Nev. 1987)).

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