The opinion of the court was delivered by: SIDNEY SCHENKIER, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Equal Employment Opportunity Commission, has filed a
motion to compel defendant, Jewel Food Stores, Inc., to respond
fully to Plaintiff's Interrogatories Numbers 5, 6 and 9 (doc. #
39). For the reasons discussed below, the Court grants the motion
We begin by setting forth the interrogatories in dispute.
Interrogatory No. 5 states as follows:
Identify each communication (oral or written) (see
Definition No. 5)*fn1 since April 1, 2001,
Defendant has had with any person concerning any
alleged discrimination or harassment of any employee
of Defendant at its Orland Park Store. Fully describe
the action (including investigation or disciplinary
action), if any, taken by Defendant resulting from
the communication, the date(s) of the action, and
identify all documents relating thereto.
Interrogatory No. 6 states as follows:
Identify each person who may have knowledge or
information supporting or relating to any of the
allegations, claims or defenses asserted in this case
and for each person describe in detail what knowledge
or information each person is believed to have. Interrogatory No. 9 states as follows:
Identify . . . each person from whom Defendant has
obtained a statement, affidavit or the like, written
or otherwise, concerning any act, circumstance or
event related to any claims or defenses in this case
and for each such statement provide the substance of
the statement and identify the custodian thereof.
In responding to these (and other) discovery requests, Jewel
has disclosed interviews of persons conducted by Jewel's Human
Resources personnel concerning the allegations of sexual and
racial harassment set forth in the EEOC complaint, as well as
information obtained in those interviews. However, Jewel has
withheld the names of the persons who have been interviewed by
Jewel's counsel (rather than by Human Resources personnel) in
connection with the allegations in this case, and has failed to
disclose the information that those persons possess concerning
the allegations in the case. In its motion to compel, the EEOC
asks for an order compelling Jewel "to comply fully with
Interrogatory Nos. 5, 6, and 9 by identifying the individuals
whom it has interviewed and providing the facts it obtained from
them" (EEOC's Motion at 9).*fn2
Although Jewel raises a number of objections to the
interrogatories, the core objection by Jewel is that disclosure
of that information would invade the work product of Jewel's
counsel. We reject Jewel's objections to disclosure.
Because we consider the work product issue to be the most
significant objection raised by Jewel, we start our discussion by
addressing that issue. The attorney work product doctrine
provides protection for materials prepared by an attorney in
anticipation of litigation, sheltering "the mental processes of the attorney, [and] providing a privileged area
within which [s/]he can analyze and prepare his client's case."
United States v. Nobles, 422 U.S. 225, 238 (1975). Thus,
opinions formed by the attorney as part of the mental process of
analyzing a case are protected from disclosure. See, e.g.,
Hickman v. Taylor, 329 U.S. 495, 510 (1947).
However, the work product doctrine, which "provides an
exception to the otherwise liberal discovery rules," Beneficial
Franchise Co. v. Bank One, N.A., 205 F.R.D. 212, 215 (N.D. Ill.
2001), does not protect factual information that a lawyer obtains
when investigating a case:
[i]t is settled law . . . that the work product
concept furnishe[s] no shield against discovery, by
interrogatories or by deposition, of the facts that
the adverse party's lawyer has learned, or the
persons from whom he has learned such facts, or the
existence or nonexistence of documents, even though
the documents themselves may not be subject to
Board of Edu. of Evanston, Twnsp. High Sch. Dist. No. 202 v.
Admiral Heating and Ventilating, Inc., et al., 104 F.R.D. 23, 32
(N.D. Ill. 1984) (citing 8 Wright & Miller, FEDERAL PRACTICE AND
PROCEDURE, § 2023, at 194 & n. 16 (1970)). In other words, "a
party may properly `inquire into the identity and location of
persons having knowledge of relevant facts,'" but "the party may
not do so in a fashion that effectively infringes upon the
opposing attorney's preparation of [the] case for trial."
Admiral Heating, 104 F.R.D. at 32.
In this case, the EEOC's interrogatories fall on the side of
seeking permissible factual information, and not impermissibly
seeking mental impressions. Interrogatories Nos. 5, 6 and 9
(albeit in different and somewhat overlapping ways) ask only for
factual information: the identities of persons who have
information or who have made statements relating to the claims or
defenses in the case, the substance of the information they
possess, and the statements they have made. The interrogatories do not ask Jewel to disclose what particular
questions its attorneys asked during any interviews, or anything
about its counsel's analysis of the witnesses or the factual
information they provided (or did not provide). Nor do the
interrogatories ask Jewel to categorize what information might be
helpful or harmful to the claims or defenses of the parties. They
simply ask for information "concerning (Interrogatory No. 5),
supporting or relating to" (Interrogatory No. 6) (emphasis
added), or "related to" (Interrogatory No. 9) the allegations,
claims or defenses. That kind of factual information is routinely
sought in discovery, and may not be withheld from production on
the basis of work product.
Jewel argues that it should not be required to answer the
interrogatories, because it cannot "separate the underlying facts
from counsel's mental processes, impressions and strategies"
(Def.'s Mem. at 6). That is a make-weight argument. Competent
counsel routinely obtain information through interviewing
witnesses and reviewing documents, and are able to provide
interrogatory responses that set forth only that factual
information without revealing "mental processes, impressions and
strategies." We expect Jewel's counsel to be able to do so as
Jewel further argues that merely disclosing whom its attorneys
interviewed will invade the attorneys' mental processes, by
revealing the persons whom Jewel's attorneys deemed important
enough to interview (Jewel's Mem. at 7). However, we think that
the fact that Jewel (or its counsel) has talked to certain
persons who are potential witnesses, without more, reveals little
or nothing about which witnesses Jewel considers important. We
note that a substantial body of case law holds that the work
product doctrine does not protect from production documents that
attorneys obtain from third parties during their investigation in
connection with a lawsuit. See, e.g., In re Grand Jury Subpoenas
Dated October 22, 1991 and November 1, 1991, 959 F.2d 1158, 1166
(2d Cir. 1992); Bohannon v. Honda Motor Co., Ltd., 127 F.R.D. 536, 539-41 (D.
Kan. 1989). The reasoning of these cases is that the mere
assembly of documents, without more, does not indicate that the
attorney placed special weight on those documents as opposed to
documents that were not obtained, and does not reveal which of
the assembled documents the attorney deems important. We think
that reasoning applies here as well. A witness may not be
interviewed for a number of reasons that do not bear on his or
her importance. Moreover, a witness who has been interviewed may
turn out to be unimportant, while a witness who has yet to be
interviewed might be critical.
In addition, Jewel's argument ignores that the interrogatories
themselves do not seek to discover the persons whom Jewel's
attorneys interviewed and what they said. The interrogatories
asked only for disclosure of persons with knowledge (and a
description of what they know), and of persons whom Jewel
communicated with or took statements from in connection with the
claims or defenses in this case. The interrogatories did not ask
that Jewel distinguish between those persons who were interviewed
by counsel, and those who were interviewed by others at Jewel
(such as, personnel from the Human Resources Department). It is
only because Jewel decided to object to the interrogatories that
answering them now might make this distinction clear. If so, then
that is a wound that Jewel has inflicted on itself. We will not
hold the EEOC's interrogatories improper simply because of a
strategic choice that Jewel elected to make.
In support of its work product objection, Jewel cites Admiral
Heating, in which the court held that defendants were not
required to answer an interrogatory that asked it to disclose the
people whom defendants interviewed concerning the claims in the
case, and the circumstances of the interviews. 104 F.R.D. at 32.
The court reasoned that answering this request would provide more
than factual information, and would give plaintiffs "the
potential for significant insights into the defense lawyers' preparation of their case." Id. We have
considered this analysis, and with respect, part company from it.
As the Admiral Heating court recognized, 104 F.R.D. at 32, in
response to an interrogatory a defendant must identify those
persons with knowledge of discoverable information, and what that
information is. Unlike Admiral Heating court, we do not believe
that a discovery request that asks who has been interviewed and
what they said runs afoul of the work product protection, at
least where the request does not ask who conducted the interview.
Here, the EEOC's interrogatories do not cross that line, because
the interrogatories do not ask whether it was Jewel's lawyers or
instead someone else at Jewel who had communications with persons
(Interrogatory No. 5) or took statements from them (Interrogatory
No. 9) concerning the claims or defenses in the case.
In support of its work product objection, the EEOC also cites
Stone Container Corp. v. Arkwright Mutual Ins. Co., No. 93 C
6626, 1995 WL 88902 (N.D. Ill. 1995), and Stokes v. Renal
Treatment Centers-Illinois, Inc., No. 4:97CV2420 CDP, 1998 U.S.
Dist. LEXIS 21022 ...