The California Supreme Court held that witness statements collected by or at the direction of an attorney constitute at least qualified work product, as a matter of law. However, employers should continue to exercise caution in collecting such statements because they remain discoverable upon a showing of unfair prejudice or injustice. The Court also found that the identities of the witnesses are not protected automatically; rather, parties must provide this information if requested in discovery, unless they can show that absolute or privileged work product protection applies.
I. FACTS AND PROCEDURAL HISTORY
Debra Coito filed a wrongful death suit against the State of California and the City of Modesto, among others, after her son drowned in the Tuolumne River in Modesto. Six juveniles were witnesses to the event.
After Modesto noticed the depositions of five of the six witnesses, the attorney for the state sent investigators to interview four of the witnesses, providing the investigators with the questions to ask. The investigators made audio recordings and saved each interview on a separate compact disc. At the first deposition by Modesto, the state's attorney relied on the substance of the witness's recorded interview to question the witness.
Coito then served the state with supplemental interrogatories, including Judicial Council form interrogatory 12.3, which seeks the name, address, and telephone number of individuals from whom written or recorded statements were obtained. Coito also made a document demand for the audio recordings of the interviews. The state objected to the discovery on work product grounds, and Coito moved to compel. Without reviewing the recordings, the trial court denied the motion, except as to the recording used as the basis for questioning at the first deposition (finding that the state had waived the work product privilege).
Coito petitioned the California Court of Appeal for a writ of mandate. In a split decision, the Court of Appeal granted the writ, finding that the information and recordings were not entitled to absolute or qualified work product protection as a matter of law. The dissenting justice concluded that the recorded interviews were entitled at least to qualified work product protection, as a matter of law, but that the identity of the individuals must be produced absent a showing of work product protection. The California Supreme Court granted review.
II. THE SUPREME COURT'S DECISION
The Court stated its holding clearly at the outset of the opinion: "[W]e hold that a witness statement obtained through an attorney-directed interview is, as a matter of law, entitled to at least qualified work product protection." The Court then explained how it got there.
The Court began with the text of California's work product statute, Code of Civil Procedure Section 2018.030, which provides absolute protection to a "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." Such material is not discoverable under any circumstances. The statute provides qualified protection to all other attorney work product, meaning it "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." Noting that the statute does not define "work product," the Court explained that courts have tried to make this distinction based on whether material is "derivative" or "non-derivative." Under this framework, courts have found that only work derivative of an attorney's thoughts, such as a trial diagram or expert report, is entitled to protection; non-derivative or purely evidentiary material – such as the identity and location of a witness – receives no protection.
The Court then reviewed the policies and history underlying California's work product privilege, explaining that the purpose is to protect both the lawyer's "work processes" and the right of litigants to "obtain the advice of experts, make investigations and do other acts, without fear of unlimited or indiscriminate disclosures to, and use by adversaries." The Court explained that while its decision in Rico v. Mitsubishi Motors Corp. was not applicable to the Coito facts (as it involved a summary, rather than a verbatim statement), Rico's observation that a work product document's "existence [was] owed to the lawyer's thought process" provided a "touchstone" for the inquiry as to whether work product protection applies to witness statements. As the Court put succinctly, "[t]he witness statement would not exist but for the attorney's initiative, decision, and effort to obtain it."
Turning first to absolute work product, the Court found that witness statements could in some cases reveal an attorney's theories, citing as an "especially revealing" example inquiries that an attorney pursues through follow-up questioning. However, not every witness statement necessarily is reflective of attorney thought processes. Thus, the Court determined that absolute work protection must be determined on a case-by-case basis; a party opposing production must offer a foundational showing that the material reflects an attorney's "impressions, conclusions, opinions, or legal research or theories." The Court endorsed the use of in camera review in making this determination, explaining that the trial court should determine "by making an in camera inspection if necessary" whether absolute work product protection applies.
The Court then held that qualified work product protection does apply as a matter of law in order to protect two important interests: to "prevent an attorney from free-riding on the industry and efforts of opposing counsel" and to relieve attorneys from "worry[ing] about discovery whenever they take a statement from a witness" – a fear which could lead attorneys to refrain from recording witness interviews and adverse information revealed during them. The Court refused to "plac[e] the burden on attorneys to tailor witness interviews so as to avoid unwanted discovery," finding that this would undermine the "core purpose" of work product protection, i.e., "to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those that the witness is no longer available, or other demonstration of unfair prejudice or injustice.
The Court disapproved a number of lower-court cases, including Fellows v. Superior Court and Kadelbach v. Amaral, to the extent they suggest that witness statements procured by an attorney do not receive qualified work product protection. The Court also made clear that its own decision in Greyhound Corp. v. Superior Court, cited by the Court of Appeal, does not support that rejected position, and noted that Greyhound was decided before the codification of work product protection.
The Court left undisturbed the trial court's finding of waiver as to the recording used as the basis for questioning during the witness deposition.
Finally, the Court addressed whether the information sought by form interrogatory 12.3 – the identity of those providing witness statements – was likewise entitled to work product protection. The Court held that while this information could sometimes reveal an attorney's impressions or reflect an attorney's effort, this would not always be the case. The Court concluded that such information is not protected as a matter of law, and held that parties must usually respond to interrogatory 12.3, absent a showing that the material is entitled to qualified or absolute work product protection.
III. PRACTICAL IMPLICATIONS FOR EMPLOYERS
Coito is a favorable decision, but employers still need to proceed with caution when conducting workplace investigations and collecting witness statements. At the outset, employers should be sure that their investigations are attorney-directed for work product protection to apply at all. Even then, recorded witness statements remain discoverable. Thus, employers must evaluate whether, and to what extent, they will incorporate attorney impressions into such interviews. Such material could make it easier to establish absolute work product protection – but could also be disclosed in the event the employer fails to make that showing, and the employee or other party seeking discovery is able to demonstrate unfair prejudice or injustice.
As for witness identities, those are now presumptively discoverable, requiring employers to consider both strategic concerns and privacy – not only in the individual setting, but also for class actions. For example, employers who interview putative class members while investigating a class action could find themselves subject to discovery requests for the identities of those individuals. At the same time, the Court acknowledged that trial courts "may also have to consider non-party witnesses' privacy concerns"– suggesting that employers can and should raise appropriate privacy objections to such discovery.
Finally, employers should prepare for discovery battles over witness statements. Plaintiffs' counsel may take the Court's qualified work product holding as an invitation to contend that they will suffer unfair prejudice without access to this material.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.