November 2012 Vol. 9, No. 3

9.3.3

Cal. Code of Civ. Proc. § 2018.010 et seq.:  Attorney Work Product

Case:

Coito  v. Superior Court (2012) 54 Cal.4th 480 

Issue:

Is a witness statement that has been obtained through an attorney-directed interview entitled to protection from discovery under the work product doctrine?    

Holding:

Yes.  Witness statements obtained through attorney-directed interviews are entitled to at least qualified work product protection.

A unanimous California Supreme Court first concluded that witness statements are not automatically entitled to absolute work product protection; such statements do not always reveal an attorney’s thought process.  (54 Cal.4th at 495.)  A showing that a witness statement is absolute work product must be made on a case-by-case basis.  An attorney who seeks absolute protection over a witness statement must make a preliminary showing that disclosure of the statement would reveal his impressions, conclusions, opinions, or legal research or theories.  It is then up to the trial court to determine, after in camera review if necessary, whether some or all of the material is entitled to absolute work product protection.  (Id. at 495-496.)

While such witness statements do not necessarily reveal the attorney’s thought process, the Court found that they do necessarily implicate two other interests that led to enactment of the statutory work product doctrine.  First, protecting such statements from discovery prevents an attorney from free-riding on the industry of opposing counsel.  (Id. at 496.)  Second, extending work product protection to such statements tends to encourage attorneys to prepare their cases thoroughly, investigating both the favorable and unfavorable aspects of their cases.  “If attorneys must worry about discovery whenever they take a statement from a witness, it is reasonably foreseeable that fewer witness statements will be recorded and that adverse information will not be memorialized. . . .  This result would derogate not only from an attorney’s duty and prerogative to investigate matters thoroughly, but also from the truth-seeking values that the rules of discovery are designed to promote.”  (Id. at 496-497.)

Accordingly, a party seeking disclosure of a witness statement obtained through an attorney-directed interview, that the resisting attorney cannot show is protected as absolute work product, has the burden of establishing that denial of disclosure of the statement will unfairly prejudice the party in preparing his claim or defense or will result in an injustice.   (Id. at 499-500, citing C.C.P. §2018.030(b).)

Notes:

The Court remanded to the trial court to determine the extent to which absolute or qualified work product protection applied to the recorded witness interviews.  (Id. at 500.)

The Court left undisturbed the trial court’s finding that the resisting party waived work product protection over a recording used to examine a witness during a deposition.  (Ibid.)

The Court also addressed the application of work product protection to form interrogatory 12.3, which asks for the identity and contact information of any witnesses from whom the responding party had obtained a written or recorded statement. The Court declined to hold that identifying such witnesses would always disclose an attorney’s mental impressions, thus bringing it within absolute work product protection.  Instead, the Court held that this interrogatory “usually must be answered.”  (Id. at 502.)  If a party can make a preliminary showing that answering the interrogatory would reveal the attorney’s “tactics, impressions, or evaluation of the case” or would allow opposing counsel to take undue advantage of the attorney’s efforts, however, the trial court should determine whether absolute or qualified work product protection applies to the information called for under the circumstances of the dispute.  The trial court also should consider any privacy concerns of non-party witnesses.  (Ibid.)

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