Where’s Waldo?

To what extent can a plaintiff protect the identity of his confidential witnesses once discovery in the case has commenced? Courts have tended to be skeptical of claims that the identity of these witnesses are attorney work product or should be kept secret to avoid possible employer retaliation.

In Plumbers and Pipefitters Local Union No. 630 Pension-Annuity Trust Fund v. Arbitron, 2011 WL 5519840 (S.D.N.Y. Nov. 14, 2011), the court addressed these issues in a case where the complaint relied heavily on alleged statements from 11 former Arbitron employees. In discovery, the plaintiffs identified 83 people who were likely to possess discoverable information, but refused to specifically identify the 11 confidential witnesses from among that list. The court concluded that the names of the confidential witnesses were entitled to little, if any, work product protection, noting that “[i]t is difficult to see how syncing up the 11 [confidential witnesses] with these already disclosed names would reveal Plaintiff’s counsel’s mental impressions, opinions, or trial strategy.” Moreover, the plaintiffs had “utilized the [confidential witnesses] offensively” and failing to identify them could require the defendants to take dozens of unnecessary depositions. As for possible retaliation, the court declined to accept any generic assertions that the confidential witnesses faced a risk of retaliation, but did give the plaintiffs’ counsel a week to submit an affidavit setting forth any particularized facts it had on that subject.

Holding: Motion to compel disclosure of confidential witness names granted (subject to review of the requested affidavit).

Quote of note: “On the facts before it, the Court, balancing the relevant considerations, does not believe the work product doctrine compels Arbitron (or, derivatively, its shareholders) to bear these costs. The discovery rules ‘should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.’ Fed. R. Civ. P. 1. These goals are disserved by forcing a party, in the name of an opponent’s evanescent work product interest, to play a high-cost game of ‘Where’s Waldo?’.”

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