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Are witness statements discoverable4/25/2024 There’s clearly a lot at stake here.Īs of now, you have at least 15 witnesses to interview, but there will likely be many more that organically grow out of the investigation, which often happens. Importantly, your recommendations at the conclusion may lead to terminations, as well as subsequent lawsuits from either the purported victims and/or the terminated executives. This is the first engagement for the client so you want to do as comprehensive a job as possible to leave a positive first impression (which will hopefully also lead to significant additional work). Rather than creating new rules, this opinion defines the role of an investigator and declares that investigation materials that do not comment on the value or merit of a claim are discoverable.Īs this decision is further litigated in the Pennsylvania Courts, Zarwin Baum will continue to provide updates.Picture this: you are on-site at a new client’s headquarters for a weeklong hostile work environment investigation into several internal complaints made against the CEO and CFO. While this decision impacts the discoverability of work product created by independent investigators, it is not a seismic shift, as the ruling emphasizes the plain language of the Pennsylvania Rules of Civil Procedure. Practically, this ruling narrows an attorney’s ability to protect material created by an independent investigator during an investigation. Thus, such work is afforded only the limited protection granted to the representative of a party and not that of an attorney. Comparatively, work like memorializing a witness statement in not inherently legal. The line of distinction is that work performed by an attorney or the attorney’s agent relates to legal analysis performed for a client. In reaching this conclusion, the court noted that there is a stark difference between the role of an attorney (and the attorney’s agent) and the role of a representative of the party, like and independent investigator. The court held that an independent investigator is not an agent of the attorney, but is merely a representative of the party and, therefore, is afforded privilege only with regards to the impressions, conclusions, or opinions respecting the value or merit of a claim or defense or strategy and tactics. In regards to representatives of the party, the court noted that the Rules of Civil Procedure only protect mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or strategy and tactics. Specifically, the Court noted that the Pennsylvania Rules of Civil Procedure only protect the mental impressions, conclusions, memoranda, notes and legal theories of an attorney or the attorney’s agent. In issuing this ruling, the court found that Pennsylvania Courts have traditionally set a high bar for invoking the attorney-client and attorney-work-product privileges. LEXIS 620 (June 7, 2018), the Pennsylvania Superior Court affirmed the decision of a trial court holding that notes generated by an independent investigator while taking witness statements were discoverable. The Pennsylvania Superior Court recently ruled that notes and memoranda of witness interviews conducted by a private investigator, acting at the direction of counsel, is not protected by the Attorney Work Product Privilege, and is therefore discoverable.
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