Recorded Witness Statements Subject to Qualified Work Product Protection

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The California Supreme Court recently held that work product protection applies to recordings of witness interviews conducted by attorneys or their agents and information concerning the identity of those witnesses in Coito v. Superior Court.

The Coito decision changed the landscape in California regarding the application of the work production doctrine to witness statements and witness identities. 

Work product is codified in California under Civil Code §§ 2018.010 et. seqAbsolute work product is afforded to writings and recordings that reflect an “attorney’s impressions, conclusions, opinions or legal research or theories.” Civ. Code § 2018.030(a). 

Qualified work product protection is afforded to all other work product. Qualified work product is “not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in prejudice.” Civ. Code § 2018.030(b). 

Now in California, witness statements obtained as a result of interviews conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitutes work product under Civ. Code § 2018.030. Coito, 54 Cal. 4th at 494. Whether the statements are entitled to absolute or qualified work product is determined on a case by case basis. Id. at 496. 

The witness statements may be entitled to absolute protection if the attorney resisting discovery can show that disclosure would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories.” Even if the attorney cannot make that preliminary showing, the statements are entitled to qualified work product protection as a matter or law. Id. The statements may be subject to discovery only if the party seeking discovery can show that “denial of discovery will unfairly prejudice him in preparing his claim or will result in an injustice.” Id.

To that extent, the Coito decision disapproved prior decisional law set forth in Fellows v. Superior Court, 108 Cal. App. 3d 55 (1980); People v. Williams, 93 Cal. App. 3d 40 (1979); Rodriguez v. McDonald Douglas Corp., 87 Cal. App. 3d 626 (1978); Kadlebach v. Amaral, 31 Cal. App. 3d 814 (1973); Greyhound Corp. v. Superior Court, 56 Cal. 2d 355 (1961); and Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214 (1996).

The Coito decision is also notable for its holding regarding the identity of witness statements and its effect on Form Interrogatory 12.3

Form Interrogatory 12.3 seeks the contact information for any individual the defense counsel has obtained a written or recorded statement. The Coito court held that 12.3 generally must still be answered but the identity of witnesses from whom counsel has obtained statements may be entitled to work product protection upon a preliminary showing by the attorney resisting discovery that the information sought is entitled to work product protection. However, statements independently prepared by witness are not subject to protection. 

The decision is important from a litigation management standpoint. Now, it is clear that witness interviews can be delegated to lower billing-rate investigators and that work product protections will still apply.