Author: David Nolte
California Appellate Court Says Attorney-Prepared Witness Statements Are Discoverable
Discovery requests regularly ask (often through form interrogatory 12.3 and a related document production request) for all witnesses interviewed, and to produce copies of any witness statements. Non-producing parties regularly object to such requests based on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214 (1996). In Nacht, such information was classified as having an absolute work-product privilege
In Coito v. Superior Court , ___ Cal. App. 5th ___ (March 4, 2010), a divided appellate panel (i) disagreed with Nacht’sbright-line approach to witness statements, (ii) ruled that such statements taken by counsel are not attorney work product, and therefore (iii) ordered the production of the third-party witness statements. Because Nacht is still a valid California appellate decision, trial courts can choose to follow it and not Coito. Nevertheless, litigators should be aware of the continuing divided authority on this regularly-recurring issue.
The Coito Court summarized California’s statutory framework for attorney work-product privilege as follows:
“In California, the attorney work-product privilege is codified in part 4, title 4, chapter 4 of the Civil Discovery Act contained in the Code of Civil Procedure. (§§ 2016.010 et seq. [Civil Discovery Act], 2018.010 et seq. [Attorney Work Product].) Section 2018.030 divides attorney work product into two categories—absolute and qualified work product. Subdivision (a) of section 2018.030 provides absolute protection from discovery of any writing that reflects an attorney‘s impressions, conclusions, opinions, or legal research or theories …. Such writings are not discoverable under any circumstances. The term writing is broadly defined to include any form of recorded information, including audio recordings. (§ 2016.020, subd. (c); see Evid. Code, § 250.) A classic example of a writing that is protected by the absolute privilege is a memorandum written by an attorney, after taking a statement from a potential witness, summarizing the attorney‘s impressions and conclusions. (See, e.g., People v. Boehm (1969) 270 Cal.App.2d 13, 21.)
Subdivision (b) of section 2018.030 is a catch-all for attorney work product that does not fall within subdivision (a). It provides qualified protection: such 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 ….”
Neither subdivision (b) nor any other provision of the Civil Discovery Act provides a description or a definition of what is and what is not qualified work product. However, the California legislature provides the following philosophical statement in Code of Civil Procedure § 2018.020:
“It is the policy of the state to do both of the following:
(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.
(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts.”
The Coito Court distinguished between verbatim notes and notes that reflect an attorney’s thinking, as follows:
“Notes made by the interviewing attorney or attorney's representative usually are treated as work product, entitled to absolute protection, because they reflect the impressions, conclusions or opinions of the interviewer. (See, e.g., Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d at p. 648.) In Rodriguez, the sought-after discovery was "an amalgam of the recorded statements of a witness and comments" made by the person who interviewed the witness for the attorney. (Id. at p. 647.) The court held the amalgam should be protected by the absolute work-product privilege, but it did so only after noting that the witness statements would not be considered work product were they not inextricably "intertwined" with the portion of the amalgam that was absolutely protected work product.
After an extensive analysis of case precedents, the Coito Court concluded that witness statements do not contain the necessary independent thinking to be protected from discovery. The Court expressed some caution in this ruling, as follows:
"We do acknowledge that an attorney could reveal his or her thoughts about a case by the way in which the attorney conducts a witness interview. We are confident, however, that competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so.
We also note that, if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product."
Accordingly, if you do not want your witness statements turned over to your opponent, then stop using tape recorders and verbatim notes. Your notes will be protected work product if they contain your mental impressions and/or organization, rather than something totally or nearly verbatim.
Fulcrum Financial Inquiry is a forensic investigations firm that is skilled in computer forensics and electronic discovery. By combining technical capabilities and accounting expertise, we are able to more quickly gather and understand relevant records.
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