Subpoena to the Defense Paralegal for Alibi-Witness Notes
Dana is a paralegal for the public defender representing Theo Martin, charged with robbery. On February 10, Dana interviewed alibi witness Chris Nguyen and took handwritten notes containing Nguyen’s cell number, a statement that Nguyen saw Martin at a basketball game in another town on the night of the robbery, and Dana’s impressions of Nguyen’s demeanor. Nguyen has since refused to speak with the defense. On March 28, the prosecutor served Dana with a subpoena to testify at an April 5 pretrial hearing and to produce 'all notes, memoranda, and correspondence concerning witness Chris Nguyen.' Trial is May 10. The local rule requires a motion to quash at least three business days before the hearing. The prosecutor says the notes are needed because Nguyen’s story changed and the state may call him. Defense counsel believes the notes are protected work product. The paralegal must decide how to respond and what to file.
1. What protections apply to Dana’s notes, and how strong are they?
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Attorney-client privilege is weak here because Nguyen is a witness, not the client, and the notes do not necessarily contain client communications. Work-product protection is the stronger theory. The notes contain both fact work product, such as Nguyen’s statement and contact information, and opinion work product, such as Dana’s impressions of demeanor. Fact work product is qualified: the prosecutor must show substantial need and that the information cannot be obtained without undue hardship. Opinion work product is entitled to near-absolute protection. Because Nguyen now refuses to speak with the defense, the prosecutor may argue substantial need as to the factual statement, but that does not justify disclosure of Dana’s impressions. The paralegal should prepare a privilege log that separates factual content from mental impressions and propose redactions. The defense should also check whether Nguyen’s statement has already been disclosed in discovery; if so, the need for Dana’s notes is weaker. Dana should not destroy or alter the notes and should not speak with the prosecutor without counsel.
2. What should be filed by what date, and what must Dana do if ordered to testify?
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Under the local rule, the motion to quash or for a protective order should be filed by April 2, three business days before the April 5 hearing. The motion should be supported by a declaration from Dana and, if useful, from counsel, and should attach the privilege log and a proposed protective order. Ask the court to review the notes in camera and to permit redaction of impressions. If the court orders testimony, Dana must comply with the court’s order, but counsel should assert the work-product protection on the record question by question. Dana should bring the notes only if the court orders production, and should not answer questions about counsel’s strategy or mental impressions. The paralegal should prepare a short index of the notes, a chronology of the interview, and a list of questions the prosecutor is likely to ask. Preserve the issue for appeal by requesting a continuing objection and a ruling on the record.
3. How should Dana handle the prosecutor’s claim that Nguyen’s story changed?
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Treat the claim as an investigation lead, not as a reason to waive protection. First, locate any prior statements by Nguyen, including the defense interview notes, any recorded call, and any discovery from the prosecution. Compare dates, details, and whether the change is material to the alibi. Second, determine whether the defense intends to call Nguyen at trial; if so, counsel must consider discovery and disclosure obligations, but that does not automatically make Dana’s impressions discoverable. Third, prepare a factual memo for counsel explaining what Dana recorded, what Nguyen actually said, and what Dana did or did not observe. Do not contact Nguyen again without counsel’s direction, especially if Nguyen is represented or has asked for no contact. The paralegal should also preserve all drafts and electronic metadata, and should not create a new summary that mixes impressions with facts. The strongest response to the prosecutor is likely a narrowed production or in camera review, not a blanket refusal to appear.