When and how plaintiffs must disclose the identities of their confidential witnesses as part of the discovery process continues to be fought over in the courts. In In re Marsh & McLennan Companies, Inc. Sec. Litig., 2008 WL 2941215 (S.D.N.Y. July 30, 2008), the plaintiffs argued that the identities of their confidential witnesses were protected by the work product doctrine and there was also a need to avoid any risk of retaliation by Marsh against its former employees.
The court held that confidential witness information enjoys limited, if any, work-product protection. Even assuming that the information was privileged, the Marsh defendants would have been forced to exhaust their depositions to ascertain the identities and, accordingly, had established a substantial justification for disclosure. Moreover, the threat of retaliation identified by the plaintiffs was more properly the basis for a protective order and required specific factual support.
Holding: Ordered disclosure of confidential witness information, including identities and any documents provided to the plaintiffs. The court also authorized limited discovery as to certain investigations pending against the proposed class representatives.