California Supreme Court Confirms Work Product Protection for Attorney-Directed Investigations

2 minute read | July.10.2012

The California Supreme Court recently clarified the extent of the attorney work product privilege under California law regarding recorded witness statements and the identities of witness interviewed by counsel, resolving a split of authority in the court of appeal. In Coito v. Superior Court, et al., Case No. S181712 (June 25, 2012), the court held that recorded witness statements—including statements made to an attorney’s agent at the direction of an attorney—are entitled to at least a qualified work product protection as a matter of law, and may be entitled to absolute protection upon proper showing. Furthermore, the court held that the identity of witnesses from whom counsel have obtained statements is not entitled to automatic work product protection as a matter of law, but may be entitled to the work product privilege upon proper showing.

Under California’s civil attorney work product statute, a “writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances,” (Cal. Code Civ. Pro. Section 2018.030(a)), and is thus absolutely privileged. All other types of attorney work product are granted a qualified privilege and are 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 or will result in an injustice.” (Cal. Code Civ. Pro. Section 2018.030(b)).

Focusing on the legislative policy and legislative history behind the statute, the court emphasized that one of the underlying purposes of the work product privilege is to encourage attorneys to investigate cases fully, including through witness interviews. The line of questioning an attorney chooses to follow during a witness interview may be especially revealing as to the attorney’s evaluation of key facts and overall theory of the case, and the court found this to be protected at a minimum by the qualified privilege.

The court acknowledged that it is less likely that producing a list of witnesses from whom an attorney has taken recorded statements could reveal an attorney’s impressions of the case, but there are circumstances in which a witness list could be subject to the privilege. For example, if an attorney decides to take recorded statements of some—but not all—employees who are involved in a pattern or practice lawsuit, disclosure of the list of witnesses may indicate the attorney’s assessment or conclusion as to which employees’ testimony supports the defendant’s theory of the case and therefore may be entitled to absolute or qualified privilege. The court also noted that preventing attorneys from freely obtaining witness identities from opposing counsel would help to avoid the “free-rider” problem, where one side benefits unfairly from the efforts and diligence of opposing counsel.

Going forward, California attorneys now have more explicit guidance on the contours of attorney work product safeguards regarding discovery issues that arise constantly in California litigation. For more on the Coito case, click here.