Daily Blast June 25, 2012

On June 25, 2012, the California Supreme Court held in Coito v. Superior Court (June 25, 2012, S181712) ____ Cal.4th ____, that recordings of witness interviews conducted by investigators employed by defendant’s counsel are entitled as a matter of law to at least qualified work product protection. (Slip opn., p. 2.) The court also held that information responsive to form interrogatory number 12.3, concerning the identity of witnesses from whom defendant’s counsel has obtained statements, can be subject to protection if the tests for absolute privilege or qualified privilege are met. (Id. at pp. 2, 24.)

Plaintiff filed a wrongful death complaint after her son drowned in the Tuolumne River in Modesto, California. (Slip opn., p. 3.) Counsel for the state sent investigators to interview four juveniles who witnessed the drowning. (Ibid.) The content of one of the witness’s recorded interview was later used during a deposition. (Ibid.) The plaintiff then served the state with supplemental interrogatories and document demands seeking the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained and seeking production of the audio recordings of the four witness interviews. (Ibid.) The state objected to the requested discovery based on the work product privilege. (Ibid.) The trial court sustained the objection, but the Court of Appeal reversed, concluding that the work product protection did not apply. (Id. at p. 2.) 

The Supreme Court granted review and reversed. (Slip opn. pp. 2-4.) The court first looked to the policy and legislative history of the work product privilege and held that witness statements obtained as a result of an interview conducted by an attorney or by an attorney’s agent at the attorney’s request “are entitled as a matter of law to at least qualified work product protection.” (Id. at pp. 2, 12.) According to the court, witness statements may be entitled to absolute protection if the attorney can show that disclosure would reveal his or her “impressions, conclusions, opinions, or legal research or theories.” (Id. at p. 15 quoting Code Civ. Proc., § 2018.030, subd. (a).) “Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” (Slip opn., p. 15.) If the absolute privilege does not apply, “then the items may be subject to discovery if plaintiff can show that “denial of discovery will unfairly prejudice in preparing claim . . . or will result in an injustice.” (Id. at p. 2 quoting Code Civ. Proc., § 2018.030, subd. (b).) The court disapproved of Fellows v. Superior Court (1980) 108 Cal.App.3d 55, Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, People v. Williams (1979) 93 Cal.App.3d 40, and Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, to the extent that they suggest that a witness statement taken by an attorney does not, as a matter of law, constitute work product. (Slip opn., p. 20.) The court also stated that Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, and Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, should not be read to support such a conclusion. (Ibid.)

As to form interrogatory number 12.3, which requests the identity of witnesses from whom defendant’s counsel has obtained statements, the court held that such information was not automatically entitled as a matter of law to absolute or qualified work product protection. (Slip opn., p. 24.) According to the court, the interrogatory usually must be answered. (Ibid.) However, protection can be obtained if the objecting party persuades the trial court that disclosure “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.” (Ibid.) “trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute.” (Ibid.) 

This Supreme Court opinion provides much needed ammunition against plaintiff discovery requests concerning witness investigations and statements that interfere with the work product privilege.

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