FEDERAL DISTRICT COURT RULES SEC PRE-FILING INTERVIEWS NOT PROTECTED BY WORK-PRODUCT DOCTRINE

A federal district court in California ordered the SEC to provide information obtained from three interviews conducted during a pre-filing investigation to the defendant in a subsequently-filed SEC civil action, rejecting the SEC’s argument that the content of the interviews was protected work product, in SEC v. Sells, No. 4:11-cv-04941-CW, 2013 U.S. Dist. LEXIS 50451  (N.D. Cal. April 8, 2013). The SEC relied upon Hickman v. Taylor, 329 U.S. 425 (1947), which the magistrate judge described as “set[ting] forth a balancing test for the Court to apply where one party seeks discovery of information hidden in an attorney’s files” and requiring “adequate reasons” to justify production. 2013 U.S. Dist. LEXIS 15000, at *4-5. Distinguishing Hickman, in which other discovery likely provided the sought-after information, the magistrate judge found that the SEC had provided none of the information gleaned during the three interviews. Given that the content of the interviews “form[ed] the basis of the allegations” against the party seeking the discovery and there was no other way to obtain that content, the magistrate ordered the documents produced. In affirming the ruling, the district court noted that the order did not direct the SEC to turn over its attorneys’ actual notes. By distinguishing attorneys’ notes from the content of the interviews, the opinion could be interpreted as holding that transcripts of SEC interviews have no work-product protection and must be produced in the right circumstances.

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