Recorded witness statements obtained by an attorney's investigator are protected by the attorney work product privilege, said the California Supreme Court in Coito v. Superior Court (June 25, 2012, S181712), __ Cal.4th __ [2012 DJDAR 8713]. The Court also held that the identity of witnesses from whom counsel has obtained statements may be entitled to work product protection depending on the circumstances.
Plaintiff's son drowned in the Tuolumne River, and she sued several defendants, including the State of California. When codefendant City of Modesto noticed the depositions of several juveniles who witnessed the incident, counsel for the state sent investigators to interview the prospective deponents. Counsel provided the investigators with questions he wanted asked, and the interviews were audio-recorded.
Plaintiff served the state with interrogatories, which included Judicial Council form interrogatory No. 12.3, which asked whether the state had obtained any written or recorded statements concerning the incident, and, if so, to identify the witnesses who provided statements. Plaintiff also requested production of the audio recordings. The state objected and plaintiff moved to compel. The trial court denied plaintiff's motion (except as to one recording where the state waived the work product privilege by using the recording during the deposition), but the court of appeal granted plaintiff's petition for a writ of mandate and directed the trial court to order the state to produce the recordings and provide a response to the interrogatory.
The Supreme Court reversed and remanded the case, holding that the recorded statements were either absolutely privileged or subject to the qualified work product privilege, and that the information responsive to the interrogatory might be entitled to work product protection, depending on the circumstances.
Witness statements obtained as a result of an interview with an attorney, or by an attorney's agent, are work product, said the court. To the extent these interviews reveal the impressions, conclusions, opinions or legal research or theories of the attorney, they are entitled to absolute protection. The interviews might contain explicit comments of the attorney, the questions may provide a window into the attorney's theory or evaluation of the case, and even the fact that the attorney has chosen to interview a particular witness might disclose tactical or evaluative information. If the attorney resisting the discovery shows that the disclosure would reveal impressions, conclusions, opinions or legal research or theories, the court should conduct an in camera inspection to determine if the absolute privilege applies.
A witness statement that is not absolutely privileged, however, is at least entitled to qualified protection, the court continued. To prevent an attorney from free-riding on the industry and efforts of opposing counsel, the party seeking disclosure has the burden of showing that denial of disclosure would unfairly prejudice the party in preparing its claim or defense or will result in an injustice.
As for the form interrogatory, the court held that responsive information is not automatically entitled to work product protection, and ordinarily the interrogatory should be answered. But the privilege may nevertheless apply if the objecting party can show that an answer will reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry and efforts. Upon such a showing, the court should review the information in camera and decide whether the absolute or qualified privilege applies.