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June 25, 2012

Coito v. Superior Court (State of California) 2012 WL 2369186 (Cal.)

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The Supreme Court holds that witness statements procured by an attorney are entitled to absolute or qualified work product protection to be determined on a case-by-case basis.  Furthermore, an interrogatory requesting a list of witness from whom an attorney has procured a statement may be entitled to absolute or qualified work product protection upon a proper showing.

Debra Coito sued the State of California for the wrongful death of her son in a drowning accident.  The State’s investigators recorded interviews with four witnesses at counsel’s direction.  After counsel used the content of one interview at a deposition, Coito served discovery to obtain information about the interviews and the recordings.  The State objected on the basis of the work product privilege.  The trial court upheld the privilege to recordings that had not been used to examine witnesses at deposition, but held that the State waived any privilege as to the interview used during the deposition.

California Code of Civil Procedure § 2018.030 codifies the work product privilege.  There is absolute protection for any writings that reflect an attorney’s impressions, conclusions, opinions, legal research, or theories and these are not discoverable under any circumstances.  A “writing” includes any form of recorded information.  Other work product is entitled to qualified protection; the party seeking discovery must show unfair prejudice or an injustice if discovery is denied.

Courts identify work product on a case-by-case basis.  Some courts distinguish between “derivative” or “non-derivative” material, or between “interpretative” and “evidentiary” material.  These cases conclude that only derivative or interpretive material created by or derived from work reflecting the attorney’s evaluation of the law or facts constitutes work product.  Non-derivative material that is only evidentiary in nature does not constitute work product.  Other courts have relied primarily upon the policies underlying the work product statute and its legislative history.

The United States Supreme Court first recognized the concept of protected work product in a case involving an attorney’s witness interviews.  The court reasoned that the opponent’s demand for the information was an attempt to reach the attorney’s work product without justification.  An attorney should be able to assemble information, determine what is relevant, prepare legal theories, and plan strategy without interference.  However, relevant and non-privileged facts hidden in an attorney’s file are not protected.

California’s first comprehensive Discovery Act protected “privileged” materials from disclosure.  Subsequently the California Supreme Court decided that neither the attorney-client privilege nor the work product doctrine protected nonparty witness statements from discovery.  The court held the federally created work product privilege was not encompassed in the Discovery Act.  The Legislature responded by codifying attorney work product protection without defining the term, leaving it for courts to interpret.

Although the numbering has changed, the current statute is virtually identical to the original enacted in 1963.  Section 2018.020 articulates the policy of preserving attorney privacy to encourage investigation of favorable and unfavorable aspects of cases, and preventing opponents from taking advantage of an adversary’s efforts.  It also distinguishes between absolute and qualified privilege.

Witness statements were always included as work product.  The California Supreme Court has held a witness statement inextricably intertwined with notes of an attorney’s impressions is work product.  A statement independently prepared by a witness does not become protected work product by transmitting it to an attorney.  However a statement obtained through an attorney-directed interview is entitled to protection because it would not exist but for the attorney’s initiative, decision, and effort.

A recorded witness interview may reveal an attorney’s impressions, conclusions, opinions, legal research, or theories and be entitled to absolute protection.  This could occur when the questions reveal an attorney’s theory or evaluation of issues.  Sometimes the fact the attorney has chosen to conduct an interview with a particular witness may disclose important tactical or evaluative information.  Absolute work product protection may apply to these scenarios.

However, there are also circumstances where an attorney marshals statements as a matter of routine and does not employ foresight, strategy, selectivity, or planning.  Thus, the Court would not conclude that all witness statements are automatically entitled to absolute work product protection.  The degree of protection must be determined case by case.  The attorney resisting discovery of a witness statement must make a preliminary showing that disclosure would reveal his or her impressions, conclusions, opinions, legal research, or theories.  The trial court should determine, by in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.

All attorney-directed witness statements are automatically entitled to at least qualified protection.  Even routinely procured statements require some attorney effort.  Thus, the party seeking discovery must show a witness is no longer available or accessible, or some other showing of unfair prejudice or injustice to obtain a witness statement.

A default rule authorizing discovery of an attorney’s witness statements would impede the Legislature’s intent to encourage attorneys to prepare cases thoroughly and to investigate favorable and unfavorable aspects of cases.  The Supreme Court directed the trial court to consider whether the witness statements at issue were entitled to absolute or qualified privilege.  The Court agreed that any privilege was waived as to the witness statement used in deposition.

The Supreme Court then turned to the propriety of a commonly used form interrogatory seeking the identity of witnesses from whom the attorney has obtained statements.  The Court held that this interrogatory should be answered except where the responding attorney can demonstrate the responsive material is entitled to qualified or absolute protection.

The form interrogatory encompasses protected attorney-procured statements as well as unprotected statements independently prepared by a witness.  Since another form interrogatory requires parties to provide a list of all known witnesses, the interrogatory reveals which witnesses an attorney saw fit to ask for a recorded statement, and may involve work product.  In some instances this may reveal the attorney’s impressions of the case, and is entitled to absolute protection.  In other instances it could reflect attorney industry or effort in selecting and tracking down witnesses, and is entitled to qualified work product protection.

However, the court was unwilling to conclude that a list of witnesses from whom the attorney has obtained statements will always reflect an attorney’s thought and selectivity.  For example, in an automobile accident the police report may disclose witnesses and the attorney obtaining a witness statement could not show anything definite about his or her thought process.

The Court held that the interrogatory requesting witnesses who have provided statements is not automatically entitled as a matter of law to absolute or qualified work product privilege.  An objecting party must make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.  The trial court should then determine if the material is entitled to absolute or qualified work product protection.

Comment: This case resolves a dispute about when witness statements are protected work product.  There is absolute protection for statements intertwined with an attorney’s thoughts or impressions.  Other statements carry a presumption of qualified work product protection and are not discoverable absent a showing of good cause.  Identification of witness statements is generally discoverable absent a showing by the responding party that the information is absolute or qualified work product.

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