Just six weeks after the Second District Court of Appeal concluded that an attorney's opinions were privileged even if they were not written down, the California Supreme Court suggested in People v. Scott (August 11, 2011, S068863), __ Cal.4th __ [2011 DJDAR 12128] that it might be otherwise.
In Fireman's Fund Insurance Co. v. Superior Court (June 28, 2011, B229880), __ Cal.App.4th __ [2011 DJDAR 9647] the appellate court concluded that the work product privilege protects an attorney's impressions, conclusions, opinions, legal research and theories even if they aren't written down. The court concluded that Code of Civil Procedure §2018.030 did not intend to leave unwritten opinion work product unprotected, or subject to a qualified privilege, and implicitly understood that an attorney's thoughts and impressions were already protected without the need for a statute. The purpose of §2018.030, said the court, was to establish that written work product that did not reflect an attorney's impressions and opinions was only entitled to qualified protection. The court rejected the interpretation of the statute that only writings were entitled to work product protection. See, "I Keep It All Up Here," posted July 27, 2011.
But the Supreme Court seems to take a more limited view of the statute. In Scott the prosecution presented evidence that a bullet found at the crime scene was fired by the pistol found in defendant's garage. Over defendant's objection, the prosecution was permitted to establish that the bullet had been given to a defense expert. Defendant contended that this line of inquiry violated the attorney work product privilege.
Citing People v. Bennett (2009) 45 Cal.4th 577, the court stated that §2018.030 defines work product as "a 'writing' that reflects an attorney's impressions, conclusions, opinions, or legal research or theories" (emphasis in original). A question that does not elicit or attempt to elicit evidence of a writing, therefore, does not violate the work product privilege. The court added that "[t]he mere fact that a piece of evidence was given to the defense says nothing about what the defense team did or did not do with the evidence."
The discussion of the work product privilege in Scott, a death penalty case, was cursory, unlike that in Fireman's Fund, where the appellate court engaged in an extensive analysis of the statute. The Supreme Court may have felt that this was a throw-away issue, since it has long been accepted that whenever the defense challenges an expert opinion the prosecution may point out that the defense had the opportunity to examine the evidence and present its own expert testimony. When the defense does not call its own expert to testify, however, this line of questioning permits the drawing of one of two conflicting inferences: 1) that the defense did not have its own expert examine the evidence, either because counsel believed it would be futile or counsel was incompetent, or 2) that the evidence was given to a defense expert and the result was not favorable to the defense. Choosing between these two inferences would require the jury to speculate, so an objection to questions designed to raise these inferences should be sustained on this ground. Allowing the jury to consider the first inference necessarily requires evidence relating to an attorney's impressions, conclusions, opinions or theories and should be protected. The analysis of Fireman's Fund seems sound, and perhaps the Supreme Court will reconsider the necessity of a writing when the issue is more squarely presented to it.