Update (December 21, 2011): Witness A denies having given a statement about an accident but plaintiff’s investigating lawyer is discovered to have written, “Witness A Statement (first draft).” Turns out the witness had handwritten a statement, after all, which was eventually produced. Does the defendant get to take the deposition of the investigating lawyer on the subject of the “not a statement statement”? Yes. But the examination, if it is to go forward, will be strictly limited.
Update (June 23, 2011): To err is human. Here in Minnesota courts, to pounce on an error and exploit it in litigation may be sanctionable.
Original Post (June 20, 2011): On January 14, 2008, the docking of the McCarthy, a one-thousand-foot 36,000 ton ship at Hallett Dock No. 8 in Duluth for winter “lay-up” and general maintenance, did not go as planned. Apparently, as she backed into her parking spot, the McCarthy hit a submerged obstruction, its hull was breached, and she sunk. What did the “lawyer/investigator” do during the aftermath? To whom did he speak? What facts did he gather?
Post-accident, the ship owners saw where this was headed and, that same day, they hired Thomas W. Emery, an admiralty/maritime lawyer to help them navigate the upcoming straits of litigation.
Here may be the key question now pending before U.S. Mag. Judge Leo Brisbois in the ensuing litigation (+ inadvertent disclosure of asserted privileged communications): when a lawyer swoops in, post-accident, to collect and communicate facts, is that information privileged? “Facts,” of course, are not privileged. “Attorney analysis” is. When “facts” are collected by an attorney, are those really “facts” or are they “core attorney work product”?
The defendants’ argument seems quite straightforward: facts are certainly not privileged and when a lawyer is involved in fact-collection, he self-evidently does not yet have sufficient information to give legal advice or prepare for litigation. A litigant cannot immunize critical “accident-day” information by sending a lawyer to collect it.
Plaintiffs’ counsels response (at least its immediate response in the parties’ letter-writing campaign) seems to focus more on the conduct of opposing counsel in the context of an inadvertent disclosure rather than a substantive defense of the work product claim.