The California Supreme Court addressed vital issues related to attorney work-product protection for statements and interviews of independent witnesses in Coito v. Superior Court, Case No. S181712 (June 25, 2012). The court conducted a comprehensive historical review of the attorney work-product doctrine and considered work-product protection for two items: "recordings of witness interviews conducted by investigators employed by defendant's counsel," and "information concerning the identity of witnesses from whom defendant's counsel has obtained statements."
Background
The Coito case was a wrongful death action against the State of California and other public agencies arising from the drowning of a 13-year-old boy in the Tuolumne River. The witness statements at issue were audio recordings of state investigators' interviews with the boy's companions at the time of the incident. The investigators were hired by attorneys from the California Department of Justice, and the state's counsel provided the investigators with questions he wanted asked of each witness. Plaintiff served the state with document demands for the recorded interviews and served California Judicial Council form interrogatories seeking the names, addresses and telephone numbers of all witnesses who had been interviewed. The trial court, relying on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214, 217 (1996), sustained the state's objections on work-product grounds, despite receiving declarations from two of the witnesses indicating that they had not intended for their interviews to be confidential.
Plaintiff then sought to overturn the trial court's ruling in a writ petition to the California Court of Appeal. In a split opinion, the Court of Appeal reversed the trial court's ruling and issued a writ compelling production of the witnesses' names and statements, concluding that work-product protection did not apply to the witness statements or names. The Supreme Court of California granted review, and reversed the Court of Appeal's ruling.
Ruling on Attorney Work-Product Doctrine
In a widely anticipated unanimous ruling, the state Supreme Court conducted a comprehensive review of the history of the attorney work-product doctrine in California from its common law inception through its codification in the California Discovery Act Code of Civil Procedure ("C.C.P." §§ 2018.010, et seq.). The court quoted extensively from the U.S. Supreme Court's ruling in Hickman v. Taylor, 329 U.S. 495 (1947), in support of policies underlying the protection of attorneys' work product, noting that "it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel," and that were an attorney's work-product materials freely discoverable, "[i]nefficiency, unfairness and sharp practices would inevitably develop" and "the interests of the clients and the cause of justice would be poorly served." Id. at 510–512.
The California Supreme Court also noted policies expressed in the California Discovery Act that the work-product doctrine is intended "to prevent an attorney from free-riding on the industry and efforts of opposing counsel" (C.C.P. § 2018.020(b)), and that attorneys should "prepare their cases thoroughly and . . . investigate not only the favorable but the unfavorable aspects of those cases" (C.C.P. § 2018.020(a)).
The court concluded that "absolute protection" is provided to writings reflecting "an attorney's impressions, conclusions, opinions, or legal research or theories." (C.C.P. § 2018.030 (a).) These materials are not discoverable "under any circumstances." Any other work product receives "qualified protection" and "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." (C.C.P. § 2018.030 (b).)
Addressing the witness interviews, the state Supreme Court held that "witness statements obtained through an attorney-directed interview" are entitled at least to qualified protection, and that a statement will receive absolute protection "if defendant can show that disclosure would reveal its 'attorney's impressions, conclusions, opinions, or legal research or theories.'" The court held that attorney-directed interviews will be subject to production only if the party seeking them "can show that 'denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice.'" The court noted that witness interviews—based on the questions the attorney does and does not ask—can reveal attorney impressions and theories of the case. But even if they do not, attorneys cannot be concerned that every time they ask a witness a question they are opening the door to discovery. The state Supreme Court disapproved of several cases cited by the Court of Appeal not in line with this holding. It also, however, rejected dicta in Nacht & Lewis, which noted that recorded statements will always be afforded absolute protection.
The court duly noted that non-derivative materials such as the identity and location of physical evidence or witnesses, as well as witness statements not obtained through the involvement of counsel, are not subject to the work-product doctrine and are not entitled to protection from discovery.
The court then went on to address the degree of protection afforded to the names of witnesses from whom attorney-directed statements have been taken. "In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege)."
The court described various scenarios in which qualified work-product protection would apply, typically involving statements taken from some but not all witnesses, but also advanced scenarios to which the doctrine would not apply, such as whether or from whom statements were taken from a short list of individuals listed in a police report of an automobile accident "whom everyone in the case knows are percipient witnesses." But if the list of witnesses interviewed has, for example, been narrowed down from a broader list based on the sort of information or legal theories a party is seeking to develop, or if the list is otherwise prepared in a fashion that would reveal the attorney's impressions or theories in the case, the names of witnesses interviewed might be entitled to protection.
What This Means for Companies
The court's ruling in Coito appears to provide solid reinforcement for the attorney work-product doctrine and can facilitate protection of internal investigations and statements taken from independent witnesses. Yet this protection is not without limits, and careful planning is likely to be necessary if a company wishes to protect the circumstances and content of witness statements and interviews.
In order to qualify for protection, witness statements and interviews taken by non-attorneys would have to be directed by counsel in a fashion that reflects counsel's mental impressions, strategies or legal theories. Routine statements taken by insurance investigators or by others who were not engaged and instructed by legal counsel may be hard to protect.
It also should be noted that Coito did not address witness statements made by a company's own employees or former employees whose statements would fall within the attorney-client privilege under cases such as Upjohn Co. v. United States, 449 U.S. 383, 397 (1981). These materials are entitled to protection above and beyond that afforded by the attorney work-product doctrine.
Companies anticipating litigation in California state courts may want to continue to plan and prepare strategies for responding to California Judicial Council form interrogatories that seek disclosure of percipient witnesses, witness interviews and witness statements. The identity and location of physical evidence and percipient witnesses, as well as witness statements not obtained through the involvement of counsel, are likely to receive little or no protection. If investigations are appropriately designed and managed by legal counsel, it may be possible to protect both the content and existence of witness interviews and statements.
If you would like more information about this Alert, please contact Paul S. Rosenlund, Michael L. Reitzell, any member of the Trial Practice Group or the attorney in the firm with whom you are regularly in contact.
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