California Supreme Court Reaffirms Work Product Doctrine for Witness Statements and Witness Identities

This case stems from a wrongful death complaint filed by plaintiff Debra Coito against various governmental entities, including the State of California, for the death of her 13-year old son who drowned in a river in Modesto, California. Six other juveniles witnessed the incident. After deposition notices were sent to five of the six witnesses, the state sent investigators to interview four of the juveniles. The state’s attorney provided the investigators with questions he wanted asked. Each interview was recorded and saved on a compact disc.
Plaintiff then served discovery requests seeking production of the witness statements and propounded Form Interrogatory No. 12.3 seeking the identity of any individuals from whom written or recorded statements had been obtained . The state objected to the requested discovery based on the work product privilege, and the plaintiff brought a motion to compel an answer and the production of the recorded interviews. The state opposed the motion relying on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996) which held that recorded witness statements are entitled to absolute work product protection and that the identity of witnesses is entitled to qualified work product protection.

The trial court agreed with the state and denied plaintiff’s motion. On appeal, the court reversed concluding that witness statements and the identity of the witnesses are not entitled as a matter of law to absolute or qualified work product protection.

After examining the legislative history of the work product privilege, the Supreme Court unanimously reversed the appellate court holding that, “the recorded witness statements are entitled as a matter of law to at least qualified work product protection.” The Court went on to state that “witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’ (§ 2018.030, subd. (a).) If not, then the items may be subject to discovery if plaintiff can show that ‘denial of discovery will unfairly prejudice [her] in preparing [her] claim… or will result in an injustice.’ (§ 2018.030, subd. (b).)”

In analyzing the recorded statements of witnesses procured by an attorney, or at his behest, the Supreme Court also expressly overruled a number of cases stating that:

“In sum, we disapprove Fellows v. Superior Court, supra, 108 Cal.App.3d 55, People v. Williams, supra, 93 Cal.App.3d 40, Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d 626, and Kadelbach v. Amaral, supra, 31 Cal.App.3d 814 to the extent they suggest that a witness statement taken by an attorney does not, as a matter of law, constitute work product. In addition, Greyhound, supra, 56 Cal.2d 355, which was decided before the Legislature codified the work product privilege, should not be read as supporting such a conclusion. At the same time, we reject the dicta in Nacht & Lewis, supra, 47 Cal.App.4th at page 217 that said ‘recorded statements taken by defendants’ counsel would be protected by the absolute work product privilege because they would reveal counsel’s ‘impressions, conclusions, opinions, or legal research or theories’ . . . . [Citation.]’”

As to the identity of witnesses from whom defendant’s counsel has obtained statements, the Supreme Court held that, “such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).”

Coito is a solid reaffirmation of California’s work product doctrine as it was conceived by the legislature and as it was usually understood by California defense attorneys everywhere. For defendants, this means that witness statements obtained by their attorneys are entitled at least to qualified work product protection where plaintiffs need to show unfair prejudice or injustice in order to obtain such witness statements.


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