Of the various tools employed by plaintiffs’ counsel in securities cases,few are more important than the use of confidential witnesses in complaints. The Private Securities Litigation Reform Act of 1995 (PSLRA) imposes stringent pleading standards, and plaintiffs find that citing statements attributed to confidential witnessestypically alleged former or current employees of the companyis often critical to their hopes of surviving a motion to dismiss. If the plaintiffs do survive the motion to dismiss, and the case moves into discovery, courts are regularly forced to grapple with the question of whether these witnesses may maintain their anonymity.
When defendants ask for the names of the confidential witnesses cited in the complaint, plaintiffs often refuse to turn over this information, arguing that these names are attorney work product and therefore merit protection under the Federal Rules of Civil Procedure. Some of the initial decisions on this issueespecially out of the district courts in the Ninth Circuitheld for plaintiffs.1 In the last few years, however, the tide has shifted and the weight of authority now supports defendants. Three recent decisions of the Southern District of New York highlight this trend and suggest the work product argument has fallen out of favor.
Southern District Cases
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
