California Court Rules on Work Product Protection for Witness Statements

Alex E. Potente

In Coito v. Super Ct. (Cal. 2012), – Cal. 4th –, – P.3d –, 2012 WL 2369186, 2012 Daily3 Journal D.A.R. 871, the California Supreme Court held that at least qualified, if not absolute, opinion work product protection applies to recorded witness statements, but the protection does not necessarily apply to the identities of the witnesses who gave the statements.

In Coito, a thirteen-year-old boy drowned in the Tuolumne River. His mother sued, among others, the State of California for wrongful death. The decedent and six other minors had allegedly been committing criminal activities immediately prior to the boy’s death, and state investigators interviewed four of the minors using questions the state’s counsel had drafted. The interviews were audio-recorded, and the state used the contents of the recordings in the deposition of one of the minors.

Plaintiff sought to discover the records and the identity of the witnesses, and the state asserted the work product privilege. The trial court held that the work-product protection applied except to the extent that the recordings had been used at the deposition, relying on Nacht & Lewis Architects, Inc. v. Sup. Ct. (1996) 47 Cal.App.4th 214, 217. The Court of Appeal granted a writ of mandate, based on Greyhound Corp. v. Sup. Ct. (1961) 56 Cal.2d 355. The California Supreme Court granted review and reversed the Court of Appeal.

The Coito court explained that, in California, the civil work product protection is codified in C.C.P. § 2018.30, which provides “absolute” and “qualified” protection for, respectively, mental impression and other work product. An attorney’s mental impressions are never discoverable, but other work product is upon a showing that production denial would cause unfair prejudice or injustice. The statute does not define work product.

After reviewing the history of the work product protection in California, modeled after the federal work product protection first enunciated in Hickman v. Taylor (1947) 329 U.S. 495, the Coito court held that attorney-authorized witness statements constitute work product, reasoning that the statement “would not exist but for the attorney’s initiative, decision, and effort to obtain it.” The court further held that witness interviews generally constitute absolute attorney work product, particularly if they “disclose important tactical or evaluative information.” The Coito court noted that absolute protection is not always available to witness statements; however, it noted that, where the statements are limited to the witness’s testimony, the statement may not be subject to the work product protection, and the attorney seeking to resist discovery on this ground must make a foundational showing that his or her mental impressions would be revealed to trigger absolute protection.

The Coito court held that witness statements that an attorney procures are – at a minimum – entitled to qualified protection in order to protect the discovering attorney from “free-riding on the industry and efforts of opposing counsel,” and allow attorneys to prepare their cases without fear of disclosure. The Coito court rejected the approach taken by earlier California courts that witness interviews can be wholly evidentiary in nature, as witness statements contain both evidence and “derivative,” or work-product, characteristics of “thought and planning.”

Finally, the Coito court held that the identity of interviewed witnesses were only potentially subject to qualified or absolute work product protection upon a showing triggering the privilege. The court reasoned that an example of disclosure triggering the work product protection would include a bus accident involving 50 survivors, but might not include a “typical automobile accident” where the police report disclosed the identity of the witnesses. Similarly, when an attorney has taken statements from all or almost all known witnesses, compelling identification of the witnesses is not likely to violate the work product privilege, as that identification “would have revealed nothing of consequence” nor “implicated any time or effort” by the attorney authorizing the interviews.