Sidley Austin LLP’s excellent blog, March’s Notable Cases and Events in E-Discovery | Insights | Sidley Austin LLP, describes an interesting work product decision.
The blog reported that, in Securities and Exchange Commission v. Volkswagen Aktiengesellschaft, et al., 2023 WL 1793870 (N.D. Cal. Feb. 7, 2023), the SEC’s interrogatory to Volkswagen asked Volkswagen to “identify each VW officer, director, or employee … whom the VW Defendants believe knew, prior to May 22, 2015,” about the conduct at issue and to “state in meaningful detail the basis for the VW Defendants’ belief as to each person so identified.” Id.
Sidley Austin reports that the court held that the interrogatory asked for opinions, not facts, writing that it asked “whom do the VW Defendants believe knew, prior to May 22, 2015,” about the conduct at issue. Id.
Judge Tse explained that Volkswagen would need to do more than “gather and synthesize” information to provide a fulsome answer; instead it would need to “evaluate and form opinions about that information.” He noted that “considerable analysis could be required” to do this, that there “could be conflicting circumstantial evidence about whether a particular employee knew,” and that Volkswagen would need to “weigh that evidence and make a judgment call.”…. Volkswagen’s lawyers would therefore need to rely on their own impressions and opinions to answer the SEC’s interrogatory, and their response to the interrogatory would reveal their conclusions.
Id. That invaded work product.
Sidley Austin also noted that:
[The court] explained that the SEC may want to identify each Volkswagen officer, director, or employee who knew, but the SEC would need to obtain that information through traditional means (e.g., document discovery, depositions, fact interrogatories, requests for admission) and could not compel Volkswagen to form and share opinions about facts that did not directly relate to Volkswagen’s theories or defenses.