The California Supreme Court came down with its much anticipated decision in Coito v. Superior Court last Monday finding that recorded witness statements, even those conducted by investigators employed by counsel, are entitled to at least qualified work product protection. Such statements may only be subject to discovery if the party seeking disclosure can show that denial will unfairly prejudice him or her in preparing their case or will result in an injustice. [Code of Civil Procedure § 2018.030(b).]
The Court also found that such statements are entitled to absolute work product protection if the objecting party can show that disclosure would reveal the attorney’s impressions, conclusions, opinions, or legal research or theories. [Code of Civil Procedure § 2018.030(a).]
The identity of witnesses from whom an attorney has taken recorded statements, however, is not automatically entitled to absolute or qualified work product protection. According to the Court, usually such information must be provided unless the attorney who obtained the information can show that providing it would reveal the attorney’s tactics, impressions or evaluation of the case. If not, the information may still be entitled to qualified protection if it would result in opposing counsel taking undue advantage of the attorney’s industry and effort in selecting which witnesses to ask for a recorded statement.
The case stemmed from a lawsuit following the drowning of a 13 year-old boy in the Tuoloumne River in Modesto, California. The boy’s mother filed a complaint for wrongful death naming several defendants, including the State of California. Six juveniles witnessed the accident, and when their depositions were noticed the State sent investigators to obtain recorded statements from four of them. Recorded statements were obtained from the four witnesses and used during questioning at their depositions. Plaintiff moved to compel production of the statements and the identifying information of the individuals from whom the statements were obtained.
The California Supreme Court ultimately remanded the case for review of whether absolute privilege applies to all or some of the recorded witness interviews. The Court based its holding on California’s policy of providing attorneys sufficient privacy to investigate both the favorable and unfavorable aspects of their case, and against opposing counsel taking undue advantage of an attorney’s industry and efforts.
One take away from the decision appears to be that if a witness is alive and available for deposition, the opposing party is not entitled to the statement as they will not be able to make the difficult showing of unfair prejudice or injustice. The ruling will also make it easier for lawyers to protect their trial strategies by preventing opposing counsel from reviewing witness statements in hopes of gleaning the lawyer’s legal theory by the questions asked or the witnesses chosen for an interview.
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