Reasonable Expectation of Confidentiality is the "Dispositive Question" for Determining the Existence of Work-Product Protection


The absence of a reasonable expectation of confidentiality in the content of an independent witness’ signed or recorded verbatim statement precludes a finding of work-product protection. That is what Petitioner Debra Coito’s Answering Brief on the Merits states in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758 which is currently pending in the California Supreme Court.

Petitioner demonstrates that California Courts have acknowledged that an expectation of confidentiality is an essential element of the work product doctrine not only in the context of waiver, but also in the context of establishing the protection in the first place.

Petitioner concludes that because the attorney involved in procuring a witness statement from an independent third-party witness cannot have a reasonable expectation that the content of the statement or the circumstances under which the statement was obtained will remain “confidential", the statement is not “work-product” thus making the statement discoverable.

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