"Percoco Highlights Subpoenas for Attorney Notes on Witness" by Venable partner, Kan Nawaday, was published in Law360 on March 19, 2018. Here is an excerpt:
Even though counsel for a witness is well positioned to prevail on a motion to quash, the prevalence of Rule 17 subpoenas for such notes and the daylight provided by Namachie and Tucker, no matter how dim, should give counsel pause. Accordingly, counsel should still endeavor to inoculate her notes from future disclosure by (1) having a clear note-taking plan before having a client proffer with law enforcement; (2) taking notes only as necessary; (3) focusing any contemporaneous note-taking on the questions asked by law enforcement; and (4) never having the client-witness do anything that can be seen as subscribing to the notes taken by counsel.
Even though counsel for a witness is well positioned to prevail on a motion to quash, the prevalence of Rule 17 subpoenas for such notes and the daylight provided by Namachie and Tucker, no matter how dim, should give counsel pause. Accordingly, counsel should still endeavor to inoculate her notes from future disclosure by (1) having a clear note-taking plan before having a client proffer with law enforcement; (2) taking notes only as necessary; (3) focusing any contemporaneous note-taking on the questions asked by law enforcement; and (4) never having the client-witness do anything that can be seen as subscribing to the notes taken by counsel.