Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

The Work Product Privilege and Discovery of Witness Lists

Every civil practitioner knows that witnesses, and what they will say, make or break a case during the pre-trial discovery period.  Because of this, the Supreme Court long ago stated the Civil Discovery Act “must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial. … ‘Only strong public policies weigh against disclosure’ ” and upheld a trial court’s order that the defendant provide discovery of the witness statements.  (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 377.)

After reviewing the history of amendments to the work product statute after Greyhound, the Supreme Court recently held that “[i]n light of the origins and development of the work product privilege in California, we conclude that witness statements obtained as a result of interviews conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by section 2018.030.” (Coito v. Superior Court (June 25, 2012) 54 Cal. 4th 480, 493.)

Also of significance, the Court held that “disclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney's impressions of the case.”  (Id. at p. 503.)   Thus, in responding to form interrogatory No. 12.3, which asks a party to disclose all written or recorded statements it has obtained, a party may in some instances reveal the attorney's impressions of the case.  However, information responsive to form interrogatory No. 12.3 is not automatically entitled to absolute or qualified work product privilege.  “Where it appears that an attorney has sought to take recorded statements from all or almost all of the known witnesses to the incident, compelling a response to form interrogatory No. 12.3 is unlikely to violate the work product privilege.” (Id. at p. 502.)

Therefore, if a practitioner decides to withhold such information in response to Form Interrogatory 12.3, he or she must ensure that they can “make a preliminary or foundational showing that disclosure would reveal his or her “impressions, conclusions, opinions, or legal research or theories” to resist that information being compelled.  (Id. at p. 496 citing § 2018.030, subd. (a).)

- Andrew Servais

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**