In an opinion today, Judge Gardephe rejected Gibson Dunn’s attempt, in a civil defamation suit, to prevent disclosure of interview notes from witnesses whose statements were shared with the SEC. Judge Gardephe had earlier ruled that any privilege was waived, but Gibson Dunn argued that, apart from any waiver, the firm had its own internal interest in protecting the notes:
[T]hese notes were not intended to record a witness’s statements verbatim; they were never reviewed, corrected, amended, redacted, or annotated by partners of the firm — in short, never prepared for the client, in contrast to the interview memoranda, which alone were shared with the client; they were never intended for review outside the firm and were never given to anyone outside the firm; and, they formed the basis for the formal interview memoranda only insofar as they were consistent with the supervising partner’s recollection and notes (if there were any).
Judge Gardephe disagreed:
Here, [the client] undoubtedly paid for the witness interviews conducted, and the notes taken, by Gibson Dunn attorneys. Gibson Dunn conducted these interviews as part of its representation of the Company. Accordingly, . . . the Company has a presumptive right of access to Gibson Dunn’s entire file, including the interview notes taken by Gibson Dunn attorneys. While Gibson Dunn contends that its handwritten interview notes fall within the “narrow exception[ ]” . . . for “firm documents intended for internal law office review and use,” notes made to record what a witness said during an interview are not the type of documents this exception contemplates. Such notes are not “internal” to a law firm and are not “recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services entailed in that representation.”