Consultants’ Notes at Deposition Held to be Privileged

Very often, law firms that engage us to perform litigation services ask us to sit in on the depositions of the other side’s fact or expert witnesses.  When this occurs, there is often a question as to whether or not we should take notes at these depositions and, if we do, whether our notes will be subject to discovery by the other side.

In a recent decision, Magistrate Judge E. Thomas Boyle (Eastern District) deemed the notes taken by a law firm’s representative during a deposition to be privileged as attorney work product and, accordingly, not discoverable by the other side.  Northrop Grumman’s representative, Mr. Cunningham, attended the deposition of a witness by Northrop Grumman.  Since it was anticipated that the witness’s testimony would relate to technical issues about which Mr. Cunningham could provide Northrop Grumman with assistance and expertise, Northrop Grumman asked Mr. Cunningham to attend the deposition.  The other side made a motion to compel production of Mr. Cunningham’s handwritten notes taken at the deposition.  The magistrate judge’s ruling that such notes were privileged as attorney work product was influenced, in part, by Mr. Cunningham’s testimony that he took the notes to better enable him to discuss the deposition with counsel during breaks in the witness’s deposition, and to support counsel by assisting counsel in trial preparation and questioning of witnesses.  Further, Mr. Cunningham’s notes were shown to be opinion work product and therefore shielded from disclosure because they contained his thoughts and impressions about the witness’s deposition testimony.

The decision as to whether a law firm’s representative who is asked to attend the deposition of one of the other side’s witnesses should take notes should always be made by the law firm with consideration of the circumstances of the specific deposition.  However, Magistrate Judge E. Thomas Boyle’s decision may offer some guidance in such situations.