In Uncategorized on 03/04/2019 at 16:37

This is a subject that provokes one-liners. But I’m being serious today.

A few days ago, I’d watched a film clip of a nonlawyer doing as good a deposition as many a top-class colleague could do, and much better than I could do. And the nonlawyer had only five (count ‘em, five) minutes wherein to do it.

The nonlawyer stuck to ascertaining the names of the people, not what the deponent (a lawyer at the time) said to those people or otherwise interacted with any.

And here is one order from three (count ‘em, three) conjoined cases that would delight any discovery geek, from Judge Gale. Let’s take Adrian D. Smith & Nancy W. Smith, et al., Docket No. 13382-17, filed 3/4/19.

It’s a battle over interrogatories and document production. I’ll spare you most of the nineteen (count ’em, nineteen) pages of Judge Gale’s prose, as without having the texts of the discovery requests before us, the resolutions of the disputes are uninstructive.

But Adrian’s & Nancy’s attorney raises an attorney work product objection, and thereby hangs the cliché.

“The U.S. Supreme Court has defined the scope of an attorney’s ‘work product’ to include materials prepared in anticipation of litigation as ‘reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways’. Hickman v. Taylor, 329 U.S. 495, 511 (1947); see also Branerton v. Commissioner, 64 T.C. 191, 198 (1975).

“In applying the work product doctrine to discovery disputes, courts have drawn a distinction between requests for the identities of persons who may have knowledge of relevant facts–a ‘legitimate concern’ and therefore proper–and requests for the identities of persons whom the opposing counsel has interviewed in preparing the case, deeming the latter as improperly affording the counsel seeking discovery ‘the potential for significant insights into the * * * [opposing counsel’s] preparation of their case (and thus their mental processes).’

“Here, respondent requests the identities of ‘all persons who were interviewed or consulted in preparing the responses.’ Respondent’s interrogatory seeks more than the identities of persons who may have knowledge of relevant facts; it seeks insights into the mental processes and trial preparation of petitioners’ counsel. That is not a proper subject for discovery.”  Order, at pp. 3-4. (Citations omitted, but get them for your memo of law form file).

Note the nonlawyer did not ask the witness about any contacts, conversations, correspondence or anything else between the witness and the named persons “who may have knowledge of relevant facts.” Just the names.

As this is a resolutely nonpolitical blog, I will give no Taishoff accolade to the nonlawyer.

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