A Witness Interview That Is Recorded Verbatim Constitutes Qualified Work Product
Coito v. Superior Court
(Cal. Sup. Ct.), filed June 25, 2012
Jeremy Wilson, who was 13 years old, drowned in the Tuolumne River. His mother, Debra Coito, filed a complaint for wrongful death naming several defendants, including the State of California.
Six other juveniles witnessed what happened. There were allegations that all of the juveniles, including Wilson, were engaged in criminal conduct immediately before the drowning.
Counsel for the state sent two investigators to interview four of the juveniles. Counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc.
During depositions, the state’s counsel used the recorded interviews in questioning witnesses.
Plaintiff served the state with interrogatories and document demands. The interrogatories included 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.
Plaintiff filed a motion to compel an answer to form interrogatory No. 12.3 and the production of the recorded interviews. The state opposed the motion, relying primarily on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), 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 denied plaintiff’s motion except as to the recording used by the state to examine the witness during the deposition. As to that recording, the court reasoned that the state had waived the work product privilege by using the interview to examine the witness during the deposition.
The Court of Appeal declined to follow Nacht & Lewis and concluded that witness interviews and the information sought by form interrogatory No. 12.3 are not entitled to absolute or qualified work product protection. It directed the trial court to compel discovery.
The California Supreme Court granted review.
HOLDING & REASONING
The California Supreme Court reversed the Court of Appeal and remanded for further consideration.
After considering the origins and history of the work product doctrine, the Court held: “witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected by [Code of Civil Procedure] section 2018.030.” It noted: “From the very inception of judicial recognition of the concept, attorney work product has been understood to include witness statements obtained through an interview conducted by an attorney.”
A statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney. However, when the statement is based on questions the attorney thinks up, it is subject to protection. In the latter instance, the witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it.
The court addressed the question of whether interviews are subject to absolute, or merely qualified, protection. It explained:
It is not difficult to imagine that a recorded witness interview may, in some instances, reveal the “impressions, conclusions, opinions, or legal research and or theories” of the attorney and thus be entitled to absolute protection. . . . This may occur not only when a witness’s statements are “inextricably intertwined” with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through follow-up questions may be especially revealing. In such situations, redaction of the attorney’s questions may sometimes be appropriate and sufficient to protect privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness’s statements will reveal what questions were asked. Moreover, in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses. . . . These are circumstances where absolute work product protection may apply.
However, the Court recognized that that witness statements procured by an attorney will not always reveal the attorney’s thought process. As a result, the Court held that an attorney resisting discovery of a witness statement based on absolute privilege must make a preliminary or foundational showing that disclosure would reveal his or her “impressions, conclusions, opinions, or legal research or theories.”
Even when statements do not reveal an attorney’s impressions, conclusions, opinions, or legal research or theories, the statements are still entitled to a qualified privilege. This is because the attorney still has expended effort and an opponent cannot take advantage of that effort without a proper showing of necessity. A party seeking the statements must show that being deprived of them would be unfairly prejudicial or result in an injustice. For example, a party may be able to obtain witness statements by showing that the witness is no longer available or accessible.
The Court’s position falls between Nacht & Lewis and the Court of Appeal. This practical approach seems to call for a case-by-case assessment rather than a bright line rule.