Image: Holley Robinson, EDRM with AI.
In Hall v. Baltimore Police Dept., 2025 WL 1548560 (D. Md. May 30, 2025)(Austin, J.), the Court considered whether materials created many years after the underlying incident were protected under the work-product doctrine. The materials were prepared as part of legal representation of the plaintiff. They included witness interview notes and memoranda.
With one exception, it was essentially undisputed that the documents were work product. However, the withholding plaintiff asserted that they were opinion work product entitled to almost absolute protection. The discovering defendants asserted that they were fact work product that was entitled to lesser protection.
The Hall Court held that one of the documents was not work product. As to the others, the Court wrote that the fact-opinion distinction was a “closer” call. However, it determined that even if the materials were lesser-protected fact work product, defendants had not made the requisite showing for disclosure in light of the passage of time between the date of the incident and the dates of the work product. As such, the Hall Court did not have to resolve the “closer” question of whether the information was opinion work product.
The decision is one part of vigorously-litigated1 discovery in a civil rights lawsuit. The plaintiff, Mr. Hall, alleged that the Baltimore City Police Department and three former officers concealed exculpatory evidence and coerced false testimony in Mr. Hall’s 1992 murder trial. In the Court’s words: “After spending more than thirty years in prison and on parole, plaintiff filed a Petition for a Writ of Actual Innocence (‘WAI’) on June 11, 2021.” Hall, 2025 WL 1548560, at *1. The conviction was vacated and the criminal case was later dismissed.
Mr. Hall then filed a petition for compensation for wrongful incarceration. The Maryland Innocence Project (“MAIP”), which represented Mr. Hall for nearly two decades, played a pivotal role in developing evidence that led to his exoneration. MAIP employed four lawyers, six outside counsel, six investigators, and more than a dozen volunteers and interns. Id. at *2.
As part of its post-conviction investigation, MAIP created numerous documents between 2005 and 2022, including witness interview notes and internal memoranda. The Court wrote that: “The seeds for Mr. Hall’s successful challenge originate with MAIP’s efforts, as early as 2005, in investigating his conviction.” Id. at *2.
The issue was whether MAIP documents created in the course of representation were protected work product.
Hall v. Baltimore Police Dept., 2025 WL 1548560 at *2 (D. Md. May 30, 2025)(Austin, J).
The issue was whether MAIP documents created in the course of representation were protected work product. Mr. Hall produced a privilege log describing the withheld MAIP materials. Defendants sought discovery of those materials, arguing that certain entries related to only “fact work product” that should be disclosed. Hall, 2025 WL 1024069, at *2.
To explain its holding, the Court discussed the distinction between opinion and fact work product. Id. at *2. “Fact work product is a transaction of the factual events involved…. Opinion work product, on the other hand, represents the actual thoughts and impressions of the attorney….” Id. (cleaned up; citations and quotations omitted). The Court wrote:
The distinction is critical to discovery disputes. Opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances…. Fact work product, however, may be discovered when the seeking party shows both (1) substantial need for the information, and (2) the unavailability of a ‘substantial equivalent’ of the information to be discovered.
Id. (cleaned up; citations and quotations omitted).
The Hall Court granted defendants’ request for in camera review2 and invited the parties to address whether the challenged materials should be disclosed based on a showing of “substantial need” and “undue hardship.” Hall, 2025 WL 1548560, at *1. Each party submitted its arguments. The Court reviewed 94 documents across 43 entries on the privilege log. Ultimately, it compelled production of only one item: a handwritten, signed statement by a potential witness dated June 13, 2010.
The Court held that witness interview notes and memoranda were work product: “The information provided to the Court indicates that the challenged documents concern witness interviews conducted by MAIP investigators. Such materials, prepared in connection with MAIP’s legal representation of Mr. Hall, are work product.” Id. at *3. Defendants essentially conceded that point, arguing instead that the withheld materials were fact work product that was entitled to lesser protection than opinion work product.
The information provided to the Court indicates that the challenged documents concern witness interviews conducted by MAIP investigators. Such materials, prepared in connection with MAIP’s legal representation of Mr. Hall, are work product.
Michael Berman and Marris Hoffee.
The Court found that distinction to be a “closer question.” It stated that courts must “tread carefully when a party seeks to compel disclosure of attorney work product, whether memorialized in writing or retained in the recesses of an attorney’s mind.” Id. at 4 (citing In re Grand Jury Subpoena, 870 F.3d at 317).
The Hall Court explained that, while some courts (such as the Eighth Circuit) have held that notes and memoranda of witness interviews are opinion work product entitled to “almost absolute immunity,” others look at the specific facts rather than a “rigid, categorical rules….” It observed that, under the second approach, verbatim (or almost verbatim) notes of what a witness said are entitled to less protection than notes that are “sharply focused and weeded.” Id. at *4. Additionally:
The Court remains mindful that, notwithstanding the aforementioned concern about invading attorney (and attorney agents’) thought processes, several courts in this circuit analyze witness interview memoranda within the context of fact work product and demonstrations of “substantial need” for the materials…. If nothing else, the non-uniformity on this issue underscores the fact-intensive nature of the analysis.
Id. at *5.
The Court provided detailed summaries of the materials at issue and they are only briefly described here. One memorandum “includes impressions about the answering person’s knowledge of those the investigators sought to interview….” Another “summarizes information provided by several individuals,” including a “critical witness” and summarizes impressions and opinions, with only one direct quote. Another “has occasional quotes of a single word or adjective, rather than capturing complete sentences nearly verbatim,” and included investigators’ opinions about veracity. One document involved a discussion of legal strategy with Mr. Hall’s trial counsel. Many lacked “extensive quotes” from witnesses while others contained occasional quotes. One memorandum from a call with the prosecutor’s office “expressly disclaims that it is not verbatim….” Id. at *6.
Apart from Entry 5, the Court held all disputed materials were protected work product. Id. at *7. It wrote that:
Entry 5 is a handwritten document dated June 13, 2010 by an apparent potential witness. This written statement is signed by the declarant and two witnesses to his signature. The declarant states where he was on July 13, 1991 and what he saw or heard on that day…. [B]ecause entry 5 was created by a declarant witness, the Court finds that this is not work product. Even if it was prepared upon the request of counsel, it is the verbatim statement of a non-party…. Therefore, Plaintiff must produce entry 5 to Defendants.
Id. at *6.
The Hall Court next considered the argument that the remainder – the notes, summaries, and memoranda created by MAIP investigators, under the direction of MAIP attorneys and in anticipation of post-conviction litigation – were opinion work product.
However, the Court determined that it need not resolve that question, writing: “Even assuming they are fact work product—which is not a foregone conclusion, considering the language in In re Grand Jury Subpoena and approach in other courts cited above—Defendants do not demonstrate a substantial need for memoranda of statements provided almost two decades after the underlying incident and by individuals whose information does not appear to have changed in a manner meaningful to this case.” Id. at *7.
The Court wrote that “substantial need” for work product “requires a showing of both the relevance and importance of the document.” That had a temporal component.
Contemporaneous statements, made near the time of the underlying incident, may have “special relevance and importance.” Id. “They offer a window to a time unaffected by faded memories or the sort of re-evaluation and change that often accompanies reflection on an incident….”
The Court wrote that: “Conversely, statements taken later… are more likely to contain information otherwise available to the seeking party through its own efforts to obtain statements or to take depositions.” Id. at *7 (cleaned up; citations and quotation omitted).
In our less elegant words, if the work product was generated recently, the discovering party can discover the same facts itself through witness interviews or depositions. On the other hand, if it was generated years ago, at the time of the incident at issue, the facts may not be equally available and the information is more likely unprotected.
If the work product was generated recently, the discovering party can discover the same facts itself through witness interviews or depositions. On the other hand, if it was generated years ago, at the time of the incident at issue, the facts may not be equally available and the information is more likely unprotected.
Michael Berman and Marris Hoffee.
The Court emphasized that “the circumstances of this litigation amplify the resistance to compel production of statements made well after the original criminal proceedings.” In wrongful conviction cases like this one, “the relevant incidents in question are the original investigation and trial.” Thus, “the relevant timeframe for ‘contemporaneous’ statements is not MAIP’s post-conviction investigation; it is the time of the original investigation.” Id. The Court rejected defendants’ argument that faded memories or witness unavailability justified disclosure of MAIP materials created decades later. The Court wrote:
[T]he statements that are cloaked in “special relevance and importance” are those provided leading up to or at [the 1992 murder] trial…. To agree with Defendants, the Court would have to find some special relevance to statements made 25 years after the underlying incident; the reasoning of the “contemporaneous statement” jurisprudence compels the opposite conclusion.
Id.
Applying that reasoning, the Hall Court wrote that the “MAIP documents were created within the last ten years regarding an incident that occurred more than thirty years ago.” Id. at *9. For that reason, and in light of overall relevancy, the Court concluded that a witness’s unavailability or present lack of memory cannot establish substantial need for this work product developed years after the incident.
The Court viewed recantations and impeachment evidence through a different lens. Recantation statements “require additional consideration….” Id. It added that there may be substantial need “where a document is necessary for impeachment purposes or to prevent fraud or misuse of the Court.” Id. at *8 (cleaned up; citations and quotations omitted).
One recantation issue involved a witness who had recanted and refused to appear for a deposition. The Court noted: “If the witness recants, a different situation may arise. It would be not only relevant but necessary to probe the recantation based on the allegations.” Id. Still, that required the requesting party to meet the standard under Rule 26(b)(3)(A)(ii), i.e., a showing that a substantial equivalent could not be obtained without undue hardship. On the specific facts presented, the Hall Court did not find show substantial need as to the recanting witness.3
Notes
