Using Interview Memos as Evidence in Later Litigation

How Can an Interview Memo Become Evidence in a Minnesota Lawsuit?

An interview memo faces two separate tests in a lawsuit. Discovery rules decide whether the other side can obtain it, and evidence rules decide whether either side can use it at trial, where a memo of what someone said is treated as an out-of-court statement.

The discovery test comes from Minn. R. Civ. P. 26.02. A memo prepared by or for your company’s lawyer, or prepared in anticipation of litigation, may be protected. A memo written for ordinary business reasons, with no lawyer involved and no lawsuit in view, fits neither protection.

The trial test starts with Minn. R. Evid. 801(c), which defines hearsay as a statement, “other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Minn. R. Evid. 802 then provides: “Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court or by the Legislature.”

The two tests work independently. A memo the other side obtains in discovery can still be kept out of the trial. A memo that never left your files can be ordered produced if your own witness uses it to refresh memory. The sections below follow the order a case reaches each step. For the wider sequence, see my overview of civil discovery for a Minnesota business defendant.

What Decides Whether the Other Side Can Get the Memo in Discovery?

Two protections can keep an interview memo out of the other side’s hands: the attorney-client privilege and the protection for trial preparation materials. The privilege covers communications with the company’s lawyer. Trial preparation protection covers material prepared in anticipation of litigation, and a court can override it only when the requesting party shows “substantial need of the materials” and that it is “unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

The privilege is statutory. Minn. Stat. § 595.02, subd. 1(b) provides: “An attorney cannot, without the consent of the attorney’s client, be examined as to any communication made by the client to the attorney or the attorney’s advice given thereon in the course of professional duty.” An interview that HR conducts without a lawyer involves no communication with an attorney for the privilege to cover.

The Minnesota Supreme Court has also limited the privilege for employees who only saw what happened. In Leer v. Chicago, Milwaukee, St. Paul & Pacific Railway Co., 308 N.W.2d 305 (Minn. 1981), a railroad’s investigator took statements from crew members on the day a switchman was injured, and the railroad refused to produce them. The court held “that when an employee is merely a witness to an accident and not a party to a subsequent action, communications made with him in a general investigation do not create an attorney-client relationship.”

Federal law can protect an employee’s communications with company counsel about matters within the employee’s duties. In Upjohn Co. v. United States, 449 U.S. 383 (1981), a federal tax-summons case, the U.S. Supreme Court protected communications employees made “to counsel for Upjohn acting as such, at the direction of corporate superiors in order to secure legal advice from counsel,” on “matters within the scope of the employees’ corporate duties,” and kept confidential. The Court declined “to lay down a broad rule or series of rules to govern all conceivable future questions in this area.” My page on keeping an investigation memo privileged covers those conditions, and the page on attorney-client privilege inside a Minnesota company covers the privilege generally.

Trial preparation protection is broader in who it covers. Under Minn. R. Civ. P. 26.02(d), the other side may obtain documents “prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” A memo by an HR manager acting for the company can qualify, but only if it was prepared in anticipation of litigation or for trial.

Even when a court orders production, the rule says the court “shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Applying the federal work-product doctrine, Upjohn explained why an attorney’s notes of witness interviews sit close to that core: “Forcing an attorney to disclose notes and memoranda of witnesses’ oral statements is particularly disfavored because it tends to reveal the attorney’s mental processes.”

The privilege does not cover the underlying facts. Upjohn stated: “The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney.” The government in that case remained “free to question the employees who communicated with” the company’s lawyers.

When Is a Witness Statement Available Without Any Special Showing?

Under Minnesota’s rule, a signed statement or a near-verbatim recording of a witness who is not a party is available to the other side on request, with no showing of need, unless a privilege protects it. A summary memo in the interviewer’s own words, which the witness never signed or adopted, does not meet the rule’s definition of a statement.

The text sits in the second paragraph of Minn. R. Civ. P. 26.02(d): “A party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party. Upon request, a party or other person may obtain without the required showing a statement concerning the action or its subject matter previously made by that person who is not a party.” The rule then defines the term: “a statement previously made is (1) a written statement signed or otherwise adopted or approved by the person making it, or (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, that is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.” That paragraph removes only “the required showing.” Rule 26.02(b) still limits discovery to “any nonprivileged matter that is relevant to any party’s claim or defense,” and Leer took up as a separate question “Whether, in any event, the attorney-client privilege constitutes a bar to discovery.”

In Leer, the crew members worked for the railroad but were not named defendants. The court held that “party,” as the rule then used it, “means only the named plaintiff or defendant,” so employees who are not named in the lawsuit were not parties in that setting. A concurring opinion, which is not part of the holding, suggested a different result might follow when the employee is an owner of a small, closely held business who took part in the conduct at issue rather than only witnessing it. The court also noted: “The Minnesota rule differs from Rule 26(b)(3) of the Federal Rules of Civil Procedure with respect to witnesses’ statements by providing for free discovery of any statements made by persons who are not parties to the litigation.”

The federal rule is narrower. Fed. R. Civ. P. 26(b)(3)(C) provides: “Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter.” In a Minnesota state case, by contrast, a signed statement from a coworker witness who is not named in the lawsuit can go to the other side on request, unless a privilege protects it. I suggest asking a witness to sign a statement only when a fixed account serves a specific purpose, such as a witness who may become unavailable, because the signature brings the statement within this rule.

Why Is an Interview Memo Hearsay at Trial?

An interview memo offered to prove that what the witness said is true is hearsay under Minnesota Rule of Evidence 801(c). The memo holds two out-of-court statements: the interviewer’s written account and the witness’s words inside it. Each layer needs its own exception before the memo can be used to prove the facts.

The layering rule is Minn. R. Evid. 805: “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.” A memo that qualifies as a business record, discussed below, still carries the witness’s words as a second layer. Those words need an exception of their own. The rule for statements of a party’s employee is one, but it applies only when the statement “is offered against a party,” which here means against your company.

A memo can also be offered for a purpose other than the truth of what it says. The 1989 committee comment to Rule 801, which guides interpretation but is not the rule itself, gives examples: “If the out of court statement is being offered for some other purpose, such as to prove knowledge, notice, or for impeachment purposes it is not hearsay.” A memo offered to show that your company learned of a complaint on a given date, rather than that the complaint was true, fits that description.

How Can the Memo Be Used Against Your Own Company?

Statements in your company’s memo can be offered against the company as its own admissions. Under Minnesota Rule of Evidence 801(d)(2)(D), a statement by the company’s employee about a matter within the scope of the employment, made while the person still worked there, is not hearsay when the other side offers it against the company.

The rule’s text in Minn. R. Evid. 801(d)(2) covers “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.” That can reach the words of an interviewed employee describing the employee’s own work. When the interviewer is also your employee and wrote the memo as part of the job, the memo itself may fit the same words.

The committee comment adds a limit: “Statements made after the employment relationship terminates will not be admissions of the employer.” A statement taken from someone who had already left your company falls outside this rule.

Admissions also skip a step the rules otherwise require. Minn. R. Evid. 613(b) bars extrinsic evidence of a prior inconsistent statement “unless the witness is afforded a prior opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” The same paragraph adds: “This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).” For this reason, I suggest writing each memo as though the other side will read it, because a supervisor’s concession recorded in the memo can be offered as the company’s own statement.

What Limits the Business Records Exception for Interview Memos?

Minnesota’s business records exception, Rule 803(6), admits a record made at or near the time by a person with knowledge and kept in a regularly conducted business activity, if “it was the regular practice of that business activity to make” it, as shown by the custodian or another qualified witness. It also states that a record prepared for litigation is not admissible under the exception. The purpose that can protect a memo in discovery can keep it out under this exception.

Under Minn. R. Evid. 803(6), a record qualifies when it was “made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” The rule closes with this sentence: “A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.”

An interview memo can have mixed purposes. The committee comment addresses that case: “If the document is prepared in part for business purposes but with an eye toward litigation the court must decide if the interest in litigation sufficiently detracted from the trustworthiness of the report to preclude its admission.” A memo written under a standing practice of documenting each workplace complaint matches the rule’s “regular practice” element, while a memo written after a demand letter arrived invites the argument that it was prepared for litigation.

The federal rule reads differently. Fed. R. Evid. 803(6) contains no sentence excluding records prepared for litigation. Its last element asks instead whether “the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”

How Do Recorded Recollection and Prior Statements Work for a Witness?

A memo can help a witness whose memory has faded, by being read aloud rather than handed to the jury. Under Rule 803(5), a memo the witness made or adopted while the events were fresh, and shown “to reflect that knowledge correctly,” may be read into evidence when the witness can no longer testify fully and accurately.

Minn. R. Evid. 803(5) covers “A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” The rule adds: “If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.” The interviewer who wrote the memo may be able to use this rule for what was said in the interview, although the witness’s words inside the memo still need their own exception under Rule 805. An interviewed employee can use Rule 803(5) only if the employee adopted the memo when events were fresh. When the witness is an injured person and § 602.01 bars the statement, Price held the statute’s protection is not avoided by the “simple device of having the witness refresh her memory from the shorthand notes and thereafter relate plaintiff’s responses as contained therein.”

Earlier statements that conflict with trial testimony face a separate rule. Under Minn. R. Evid. 801(d)(1)(A), a witness’s prior inconsistent statement is excluded from the hearsay definition under that clause only if it “was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.” An unsworn interview memo does not meet that condition. Unless another rule applies, such as the admission rule above, the other side can use the memo only to challenge the witness’s credibility. Under Rule 613(b), the memo itself generally cannot be offered for that purpose until the witness has had a chance to explain or deny the statement.

Consistent statements can help your side. Rule 801(d)(1)(B) treats a prior statement as non-hearsay when the witness testifies, can be cross-examined about it, and the statement is “consistent with the declarant’s testimony and helpful to the trier of fact in evaluating the declarant’s credibility as a witness.”

What Happens When a Witness Reviews the Memo Before Testifying?

If a witness uses the memo to refresh memory while testifying, Minnesota Rule of Evidence 612 entitles the other side to see it. If the witness reviewed it before testifying, the court may order the same result when it decides that doing so is necessary in the interests of justice.

Minn. R. Evid. 612 applies when a witness uses a writing “to refresh memory for the purpose of testifying,” either while testifying or “before testifying, if the court in its discretion determines it is necessary in the interests of justice.” In either case, “an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and if otherwise admissible to introduce in evidence those portions which relate to the testimony of the witness.” If the writing contains unrelated matter, the rule directs the court to examine it in camera and remove the unrelated portions.

The rule leaves one question open. Its committee comment states that the rule “does not speak to the issue that will be raised in civil cases if the document that is used to refresh a witness’ recollection falls under the work product doctrine.” The same comment states that the rule “should not be read to disregard applicable privileges that are validly asserted to protect the confidentiality of a communication.” I suggest choosing deliberately which documents a witness reviews before testifying, because the rule leaves open whether a work-product memo used to refresh memory can be ordered produced.

Handing over the memo on purpose has a wider effect. Minn. R. Evid. 502(a) governs how far a waiver reaches when a disclosure in a state court proceeding waives the attorney-client privilege or work-product protection. The waiver reaches undisclosed material only if three conditions hold: “the waiver is intentional,” the disclosed and undisclosed material “concern the same subject matter,” and “they ought in fairness to be considered together.” A company that produces part of its investigation file to show it acted reasonably makes an intentional disclosure, and the subject-matter and fairness conditions then decide how far the waiver reaches.

How Does Minnesota’s Personnel Record Law Treat Investigation Memos?

Minnesota’s personnel record law keeps information relating to “the investigation of a violation of a criminal or civil statute by an employee or an investigation of employee conduct for which the employer may be liable” out of an employee’s personnel record until the investigation is complete and the employer takes adverse action based on it. Other exclusions, including privileged material and coworker statements that identify the coworker, can keep parts of an interview memo out even after that.

The right to see the record comes from Minn. Stat. § 181.961, subd. 1: “Upon written request by an employee, the employer shall provide the employee with an opportunity to review the employee’s personnel record.” For a former employee, subd. 2(c) provides: “With respect to employees who are separated from employment, upon the employee’s written request, the employer shall provide a copy of the personnel record to the employee.” An “employer” under Minn. Stat. § 181.960, subd. 3, “means a person who has one or more employees.” An “employee” under subd. 2 “means a person who performs services for hire for an employer, provided that the services have been performed predominately within this state.” Subdivision 2 continues: “The term includes any person who has been separated from employment for less than one year. The term does not include an independent contractor.” I suggest checking the current text of § 181.960 for that period before relying on it.

Section 181.960, subd. 4, then lists what the personnel record does not include. Clauses that can reach an interview memo include:

1. Open investigations. Clause (2) excludes “information relating to the investigation of a violation of a criminal or civil statute by an employee or an investigation of employee conduct for which the employer may be liable” unless and until two conditions are met. First, “the investigation is completed and, in cases of an alleged criminal violation, the employer has received notice from the prosecutor that no action will be taken or all criminal proceedings and appeals have been exhausted”. Second, “the employer takes adverse personnel action based on the information contained in the investigation records”.
2. Personal information about others. Clause (6) excludes “written comments or data of a personal nature about a person other than the employee, if disclosure of the information would constitute an intrusion upon the other person’s privacy”.
3. Notes kept by their author. Clause (7) excludes “written comments or data kept by the employee’s supervisor or an executive, administrative, or professional employee, provided the written comments or data are kept in the sole possession of the author of the record”.
4. Privileged material. Clause (8) excludes “privileged information or information that is not discoverable in a workers’ compensation, grievance arbitration, administrative, judicial, or quasi-judicial proceeding”.
5. Coworker statements. Clause (9) excludes “any portion of a written or transcribed statement by a coworker of the employee that concerns the job performance or job-related misconduct of the employee that discloses the identity of the coworker by name, inference, or otherwise”.

I suggest sorting the file before any adverse action, because clause (2) stops shielding investigation information once both of its conditions are met. Marking which pages hold personal information about other people, which are privileged, and which identify coworkers lets you apply clauses (6), (8), and (9) when a request arrives. Under Minn. Stat. § 181.963, information “properly belonging in an employee’s personnel record” that the employer left out of the record it provided for review “may not be used by the employer in an administrative, judicial, or quasi-judicial proceeding, unless the employer did not intentionally omit the information and the employee is given a reasonable opportunity to review the omitted information prior to its use.” An investigation closure memo is a natural place to record that sorting.

What Should an Interview Memo Contain to Hold Up Later?

An interview memo holds up best when it shows when and why it was written, who directed the interview, what the witness said in the witness’s own words, and which statements are the interviewer’s impressions. Each of those details answers a question one of the rules above asks.

1. The date and the gap since the interview. Rule 803(6) asks whether a record was made “at or near the time,” and Rule 803(5) requires a memo “shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.” I suggest writing the memo the same day and dating it, because both exceptions turn on timing. If the witness is an injured person, § 602.01 also bars using the statement as evidence unless that person receives a copy as the statute requires, and a statement secured within the statute’s period after the injury “shall be presumably fraudulent” in that person’s trial for damages.
2. Who directed the interview and why. Trial preparation protection under Rule 26.02(d) depends on whether the memo was prepared in anticipation of litigation, and the privilege under § 595.02 depends on a communication with the company’s attorney. I suggest stating at the top of the memo who requested it and for what purpose, because a later reader will judge both protections from that context.
3. Facts apart from impressions. When a court orders production of trial preparation materials, Rule 26.02(d) directs it to protect “the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” I suggest putting credibility assessments and conclusions in a separate, labeled section, because if the memo qualifies as trial preparation material, that makes those impressions easier to identify and withhold.
4. The witness’s own words, marked as quotes. A memo that separates verbatim quotes from paraphrase lets a later reader see exactly what the witness said, which matters for the employee-admission rule and for impeachment.
5. Whether the witness reviewed or signed it. A memo the witness signed or adopted becomes a “statement previously made” under Rule 26.02(d) and, for a nonparty, available to the other side on request unless a privilege protects it.
6. A short distribution list. In Upjohn, the company treated the employee communications as highly confidential when made and kept them confidential, which supported the privilege.

For the steps of the investigation itself, see my guide to running a workplace investigation. Once a lawsuit is anticipated, a legal hold notice should cover the interviewers’ raw notes and recordings, because losing them can create spoliation risk under Minn. R. Civ. P. 37.05 for electronic records.

Planning the Memo With the Lawsuit in Mind

An interview memo can help your company or hurt it in a later Minnesota lawsuit, and several of the facts that decide which happens are fixed the day it is written. The rules ask who directed the interview, why it was done, whether the witness signed or adopted the account, how soon it was written, and who has seen it since.

Your company’s investigation policy, the facts of the complaint, and whether a lawyer was involved from the start all change how these rules apply. If your company has interview memos and a lawsuit in view, email [email protected] with a brief description of the situation. I can analyze which parts of the file are protected in discovery and how each part could be used at trial. My litigation practice page describes the disputes I handle.