Confidentiality Agreements Are Not a Bar to Informal Witness Interviews

by Joseph H. Einstein

June 01, 2009

Courts have long recognized the efficacy and importance of informal witness interviews.

Informal witness interviews serve a vital role in litigation. They permit counsel to learn relevant facts in an informal setting, without the presence of opposite counsel. In securities litigation, they rise to an even more important level because the use of confidential witnesses can verify the existence of wrongdoing and provide information essential to prepare and sustain a complaint. The process, however, may be thwarted by the presence of confidentiality agreements which may, on their face, appear to prohibit the witness from providing relevant information. As discussed below, courts have not allowed these agreements to be used to foreclose the interview, provided counsel acts in a reasonable and responsible manner.

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