Originally Published in American Bar Association Litigation News, September 14, 2012.

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In a unanimous decision that may lead to increased discovery disputes for trial courts, the California Supreme Court recently clarified the scope of attorney work product protection with respect to witness identities and statements. The court held that recorded witness statements procured by an attorney or his agent are entitled to qualified work product protection as a matter of law; however, the identity of witnesses is entitled to no such protection.

In Coito v. Superior Court, plaintiff sought to compel the production of audio-recorded witness interviews conducted by defendant as well as the names, addresses, and telephone numbers of the individuals from whom statements had been obtained per California Judicial Council form interrogatory 12.3. Defendant opposed the motion to compel, arguing that the witness interviews were conducted by counsel's investigators using questions that counsel had provided, and thus were entitled to absolute work product protection.

The trial court denied plaintiff's motion, but the appellate court reversed. The California Supreme Court granted review.

Absolute versus Qualified Protection
The state supreme court provided a comprehensive review of the origins of the work product privilege in California beginning with the U.S. Supreme Court's 1947 decision in Hickman v. Taylor and the legislative action following it. In light of the history, the court held that witness statements are entitled to, at minimum, qualified work product protection in the interest of "prevent[ing] attorneys from taking undue advantage of their adversary's industry and efforts" and "encourag[ing] attorneys to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases." Qualified protection under California Code of Civil Procedure Section 2018.030(b) provides that attorney work product is not discoverable unless the party seeking disclosure can demonstrate that denial of discovery will be unfairly prejudicial or will result in an injustice.

The court rejected the bright-line proposition that all recorded witness statements obtained by an attorney are entitled to absolute work product protection. Under Section 2018.030(a), "a writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories" is afforded absolute protection and is "not discoverable under any circumstances." The state supreme court acknowledged that a recorded witness interview may reveal an attorney's thoughts and impressions—for instance, in the line of questioning—and fall under the category of absolute protection. However, this will not necessarily be true for all witness statements.

Accordingly, witness statements may be subject to discovery if the party seeking disclosure can demonstrate that denial of discovery would result in unfair prejudice or injustice. What constitutes unfair prejudice or injustice will likely be a standard similar to the one in federal courts under Federal Rule of Civil Procedure 26, says David J. Wolfsohn, Philadelphia, former cochair of the ABA Section of Litigation's Trial Evidence Committee. "If you can show that the interview you are seeking is a unique snapshot of something that now cannot be replicated, then you can sometimes meet the substantial need test under the federal rule." But, "if it looks like you are just lazy or are not a thorough lawyer and didn't interview witnesses, the court is not likely to be sympathetic," says Wolfsohn,

If a party can show that disclosure of a witness statement would reveal its attorney's impressions, conclusions, opinions, or theories of the case, then the statement may be entitled to absolute protection from discovery. Significantly, the court instructed that, where a party claims absolute work product protection applies, a trial court should make an in camera inspection of witness statements to determine whether absolute protection applies to some or all of the material. "If trial courts really follow this mandate, it's going to create a lot of satellite litigation over where to exactly draw the line," says Wolfsohn.

No Work Product Protection for Identity of Witnesses
With respect to discovering the identity of witnesses from whom statements were taken, the court held that such information does not automatically qualify for any work product protection. "Parties in litigation typically know the full universe of witnesses," the court noted, and it would be the rare case in which providing a list of witnesses from whom statements were taken might reveal an attorney's theories of the case.

Thus the court held that form interrogatory 12.3 must be answered, but an objecting party may be entitled to protection if it can demonstrate that "disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking an undue advantage of the attorney's industry or efforts (qualified privilege)."

Careful Planning to Maintain Privilege
Though the court did not provide a bright-line rule concerning work product protection for witness statements, observers agree that it provided thorough analysis and guidance for attorneys who want to ensure that their work product remains protected.

"The Coito decision further refines Hickman v. Taylor, particularly with respect to how to plan so as to maintain privilege in the investigative discovery stage of litigation," says Jessica K. Hew, Orlando, cochair of the Section of Litigation's Pretrial Practice & Discovery Committee. "Attorneys must carefully plan their discovery process to maintain absolute privilege by ensuring the witness statements fall within the ambit of absolute privilege, reflecting mental impressions, conclusions, opinions, or legal research and theories of the attorney" throughout the process.