5.1.10

Attorney Work Product Doctrine

Case:

Hynix Semiconductor, Inc. v. Rambus, Inc. (N.D. Cal. 2008) 2008 WL 397350

Issue:

Do Federal Rule of Evidence 403 and the interests underlying the attorney work product doctrine compel limiting the scope of counsel’s cross-examination at trial of opposing party witnesses, even non-employee witnesses with no attorney-client relationship with a party, about their meetings with a jury consultant retained to help prepare their testimony?

Holding:

Yes.  The Court initially observed that “[t]here is sparse case law on whether a court should permit cross-examination regarding how a witness prepared for his or her testimony.”  (Id. at *1.)  The Court adopted the reasoning of In re Cendant Corp. Securities Litigation (3d Cir. 2003) 343 F.3d 658, a case in which the jury consultant apparently was the celebrity psychologist “Dr. Phil.”  In that case, the Third Circuit ruled that work product protection extended to the advice of non-attorney litigation consultants whose advice to a witness about their testimony was protected opinion. 
Accordingly, the District Court here ruled that asking whether a witness rehearsed his testimony, the purpose of the meeting, who was present, and how long the meeting lasted all would not intrude on work product.  “Questions going to how the consultant told the witness to improve his or her testimony[, however,] seem to intrude on the values underlying the work-product doctrine and the adversarial system.  That an attorney or jury consultant thinks a particular witness fidgets or sweats too much intrudes on their mental impressions.”  (Id. at *4.)  Consequently, the District Court barred questions on cross-examination “about counsel’s or the consultant’s views on important facts of the case, trial themes or strategy, strengths or weaknesses of the witness, or advice to the witness as to how to improve his or her appearance or credibility. . . .”  (Ibid.)   

Note:

Before reaching its conclusion, the District Court rejected as too speculative counsel’s argument that such cross-examination would be unfair because of negative images of jury consultants that have appeared in the media.  The Court also rejected the argument that such cross-examination would create a prejudicial inference that one side has more resources than the other.  “The argument falls flat here because the jurors need only look at the rows upon rows of counsel and trial assistants, shelves of binders, and the admissible evidence regarding market size to know that both sides in this dispute have plenty of money and are prepared to spend it.”  (Id. at *2.)