In-house lawyers often interview or direct others to interview witnesses to an event that may result in litigation involving their company. The interviewees may include company employees, persons, such as consultants, with a contractual relationship with the company, or completely independent witnesses. Counsel inevitably will face the decision whether to memorialize the interview and, if so, whether to do so by having the witness sign a statement, video- or audio-recording the statement, or summarizing the witness’s comments in a memorandum.
The questions become whether documented witness statements are discoverable and how in-house attorneys should handle these statements to maximize the potential for protection. And these questions implicate several issues, including the corporate attorney-client privilege, the work-product doctrine, and federal and state-law distinctions.
Statements of independent witnesses—those with no employee or other relationship with the company—will not receive attorney-client privilege protection because, simply, these statements fall outside the attorney-client relationship. In-house counsel must therefore rely upon the work-product doctrine to protect these statements from discovery, and in-house counsel must carefully plan how to handle the witness interview and whether to obtain statements if she wants to protect the circumstances and content of witness statements and interviews.