Recorded Witness Statements Entitled to Work Product Protection as a Matter of Law

by Low, Ball & Lynch

[Special Issue author: James F. Regan]

Coito v. The Superior Court of Stanislaus County, --- P.3d---, 2012 WL 2369186 California Supreme Court, June 25, 2012

On June 25, 2012, the California Supreme Court, in a unanimous decision, handed down its long-awaited decision in Coito v. The Superior Court of Stanislaus County. In California, an attorney’s work product is protected by statute. Here, the Court ruled that recorded witness statements are entitled as a matter of law to, at the least, qualified work product protection. The Court also ruled that the identity of witnesses from whom counsel has obtained statements is not automatically entitled to absolute or qualified work product protection, and counsel must persuade the trial court that it should be protected.

Debra Coito filed a complaint for wrongful death after her 13 year old son drowned in the Tuolumne River in Modesto, CA. Six other juveniles witnessed what happened and defendant State of California sent two investigators to interview four of the juveniles. The state’s counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc. The state’s counsel used the content of the witness’s recorded interview in questioning the witness at deposition.

Plaintiffs served discovery on the State after the depositions, including Judicial Council form interrogatory No. 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The document demands sought production of the audio recordings of the four witness interviews. The state objected to the requested discovery based on the work product privilege. The state opposed plaintiff’s motion to compel, relying primarily on Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217, which held that recorded witness statements are entitled to absolute work product protection and that information sought by form interrogatory No. 12.3 is entitled to qualified work product protection. The trial court, relying on Nacht, denied the motion. The Appellate Court, expressly declining to follow Nacht, concluded that witness interviews and the information sought by form interrogatory No. 12.3 are not entitled as a matter of law to absolute or qualified work product protection. The Supreme Court granted review.

California’s Work Product Doctrine

California’s civil work product privilege is codified in California Code of Civil Procedure § 2018.030. Subdivision (a) provides absolute protection to any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” Such a writing “is not discoverable under any circumstances.” (Ibid.) The term “writing” includes any form of recorded information, including audio recordings. (§ 2016.020, subd. (c)) Section 2018.030, subdivision (b) provides qualified protection for all other work product. Such material “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 an injustice.” (§ 2018.030, subd. (b).)

California’s Legislature has set forth two interests it seeks to protect in enacting the work product privilege: first, to prevent attorneys from taking undue advantage of their adversary’s industry and efforts; second, to encourage attorneys to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

Recordings of Witness Interviews

As to a witness statement obtained through an attorney-directed interview, it is entitled as a matter of law to at least qualified work product protection, and possibly even absolute privilege. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. (§ 2018.030, subd. (b).) If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” (§ 2018.030, subd. (a)), that party must make a preliminary or foundational showing in support of its claim.

The Court reasoned that the applicability of absolute protection must be determined case by case. Therefore, the trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material. The Court noted that it is not difficult to imagine that a recorded witness interview may be entitled to absolute protection, such as when a witness’s statements are “inextricably intertwined” with explicit comments or notes by the attorney. Also, lines of inquiry that an attorney chooses to pursue through follow-up questions may be revealing. Further, in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information.

Identity of Witnesses Who Have Given Statements

Form interrogatories are frequently propounded in civil actions. The Court noted that, because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory 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. Upon such a showing, the 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. A trial court may also have to consider non-party witnesses’ privacy concerns.


This ruling further reinforces the work product doctrine. The Court’s unanimous decision upheld the long-standing protections under Nacht, and the Legislative intent that disclosing privileged information would take undue advantage of an attorney’s industry or efforts. This case will probably result in many more discovery disputes coming before the trial courts. Since budget cuts have reduced the number of trial courts able to hear these disputes, resolution of these issues will be delayed.

For the complete decision see:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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