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Walking the Line: Sharing Work Product with Testifying Witnesses

By John J. Weinholtz and Elizabeth A. Brophy

Attorneys have an ethical obligation to represent their clients zealously. Deposition preparation is key to that obligation. Preparing testifying witnesses educates and focuses them on important issues and facts of a case. This aside, the law regarding disclosure of work product provided to testifying witnesses is not well settled, and 'there is considerable room within which thoughtful judges can reach different conclusions.' Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 387 (N.D. Cal. 1991). Zealous representation, therefore, requires counsel to walk a line between witness preparation on one side and work product disclosure on the other. In so doing, counsel must also remain mindful of the line that exists between acceptable witness preparation and impermissible influencing of a witness. State v. Earp, 571 A.2d 1227, 1235 (Md. 1990). One misstep may lead to disclosure of counsel's mental impressions and strategy and, possibly, to serious sanctions.

The Work Product Doctrine

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