Privileged Witness Statements

The problem of applying the work product privilege to recorded witness statements has vexed attorneys for decades. The confusion rests primarily in the distinction between interpretive material that is the product of an attorney's initiative, and evidentiary material that merely summarizes the underlying facts of a dispute. As courts and counsel wrestle with this issue, they must confront and attempt to strike a balance between several principles that sometimes come into conflict with each other. These include the Legislature's intent to promote thorough case investigation by lawyers; the wish to protect bona fide work product created by attorneys; and the imperative to avoid injustice that may result if information is not shared.

The Coito Case
All three were factors in a watershed case decided by the California Supreme Court. (Coito v. Superior Court, 54 Cal. 4th 480 (2012).) Specifically, the justices sought to clarify the applicability of the work product doctrine to recorded witness statements. However, the justices could not possibly answer every question, and in handing down their much-anticipated Coito opinion, they may have opened the door to even more trial court discovery disputes.

The Coito case involved a wrongful death claim brought against the State of California (and other defendants) by Debra Coito following the drowning death of her 13-year-old son Jeremy in the Tuolomne River in Modesto. Investigators for the state tape recorded interviews with several of the juveniles who witnessed the drowning. Coito's counsel promptly propounded discovery requests seeking the names, addresses, and telephone numbers of the persons interviewed, as well as the audio recordings of their statements.

The state objected, contending that the statements were work product because they had been gathered for counsel by a defense investigator who utilized questions suggested by defense attorneys. (54 Cal. 4th at 486-487.)

The trial court, relying on an oft-cited precedent, sustained the state's objection, concluding that the statements were entitled to absolute work product protection and that the witness identification information was entitled to qualified work product protection. (See Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214, 217 (1996).)

However, the court of appeal determined that the state had not made a sufficient showing to qualify for work product protection.

The state Supreme Court granted review and, in a unanimous opinion authored by Justice Goodwin Liu, concluded that recorded witness statements are entitled as a matter of law to at least qualified work product protection. (54 Cal. 4th at 494.) Further, the court held that a witness statement may in fact be entitled to absolute protection if disclosure would reveal an attorney's impressions, conclusions, opinions, or legal theories. (54 Cal. 4th at 495-496.) As for the witness list, the high court found that such information was not automatically entitled to work product protection, but might be protected upon a foundational showing that disclosure would amount to an injustice. (54 Cal. 4th at 501-502.) The court essentially ruled that witness lists are now presumptively discoverable - unless counsel makes a sufficient factual showing that they constitute true work product.

Historical Perspective
The concept of protection of an attorney's work product from disclosure was first recognized by the United States Supreme Court in Hickman v. Taylor (329 U.S. 495 (1947)). In that case, which predated the widespread use of audio recording, counsel for the defendant took statements from the surviving members of a boat accident. Counsel for the plaintiff thereafter sought production of these statements, requesting that defense counsel write out or repeat everything the witnesses had told him. The Court found that such a request "gives rise to grave dangers of inaccuracy and untrustworthiness" because it "forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witness's remarks." (329 U.S. at 513.)

The Court denied the plaintiff's request for production, finding the request to be a simple attempt to "secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties." (329 U.S. at 510.) The Hickman decision marked the beginning of the work product doctrine, and the principles announced in that case were carried forward years later in the Federal Rules of Evidence. (See Fed. R. Evid. 502.)

The Hickman Court found that to properly prepare a case for trial, an attorney must assemble information, separate the relevant information from the irrelevant, and prepare legal theories without undue interference. If such materials were made available to opposing counsel on demand, "much of what is now put down in writing would remain unwritten." The effect of such disclosure would be "demoralizing" to the legal profession and "the interests of the clients and the cause of justice would be poorly served."

However, the justices also found that some written materials prepared by an attorney in the course of litigation may be discoverable. "Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had." (329 U.S. at 511.) The Court reasoned that some written statements may provide clues as to the location of relevant facts, or may be used to impeach or corroborate a witness's testimony. Furthermore, production may be justified if the witness is no longer available.

California Reaction
In response to Hickman, a California State Bar Committee proposed an amendment to the definition of the attorney-client privilege. That proposal was dropped after the state Supreme Court held that written reports by a party involved in an accident (as well as photographs of the accident scene) were protected by the attorney-client privilege, but that a plaintiff's signed statement to an investigator was not protected. (See Holm v. Superior Court, 42 Cal. 2d 500 (1954).)

Ultimately, the Legislature enacted the Civil Discovery Act (former Cal. Code Civ. Proc. §§ 2016-2034), which sought to regulate pretrial discovery and remove it as much as possible from judicial supervision. Attorneys were expected to freely exchange information without requiring a court order; under the new statute, any relevant information that was "not privileged" could be discovered by the other side.

Then in Greyhound Corp. v. Superior Court (56 Cal. 2d 355, 399 (1961)), the California Supreme Court determined that neither the attorney-client privilege nor the attorney work product doctrine protected nonparty witness statements from discovery. In the Greyhound case, a personal injury plaintiff sought written witness statements obtained by the defendant's insurance adjusters. The defendant objected, citing the attorney-client and work product privileges. The court held that because the Legislature had not created such a privilege when it enacted the Civil Discovery Act, no such privilege expressly existed. (56 Cal. 2d at 399.)

In the wake of the Greyhound decision, the Legislature amended the discovery statutes to expressly provide for the work product privilege. As a result, the code now provides that it is California's policy:

- To preserve the rights of attorneys to prepare cases for trial with the degree of privacy necessary to encourage thoroughness and the investigation of both the favorable and the unfavorable aspects of those cases; and

- To prevent attorneys from taking undue advantage of their adversary's industry and efforts. (See Cal. Code Civ. Proc. § 2018.020(a) and (b).)

The Legislature's intent in enacting this provision is twofold: It seeks to promote zealous advocacy and comprehensive case preparation, while precluding an attorney from riding the coattails of an opponent's hard work.

The same factors were at the heart of the state Supreme Court's decision in Coito.

How Much Privilege?
There are two different types of work product protection. Information may be absolutely privileged, or it may be subject to only a qualified privilege. Both concepts are embedded in the governing statutes. Specifically, the Legislature has specified that absolute work product protection applies to "a writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." Such writings are "not discoverable under any circumstances." (Cal. Code Civ. Proc. § 2018.030(a).)

Another portion of the statute explains that information subject to qualified work product protection "is 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. Proc. § 2018.030(b) (emphasis added).)

For better or worse, the Legislature did not actually define the term work product in section 2018.030, nor did any statute or rule of evidence expressly direct how to deal with witness statements. Instead, that issue was left to judicial interpretation.

Prior to Coito, the closest the state Supreme Court came to examining the issue was seven years ago, when the justices ruled that "[w]hen a witness's statement and the attorney's impressions are inextricably intertwined," the entire document receives absolute protection. (Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807, 814 (2007).)

However, even if an attorney's impressions are not "inextricably intertwined" with a witness's statement, the absolute privilege may arise when the questions asked (or not asked) provide insight into the attorney's litigation strategy. Moreover, the very fact that an attorney has chosen to interview (or not interview) a witness may divulge strategic information. (Coito, 54 Cal. 4th at 495.)

Of course, when an attorney merely asks a witness to recite his or her recollection of the incident, without any particular forethought or approach, the attorney's questions arguably would not reveal any particular strategy at all. This is why the high court in Coito held that recorded witness information is not automatically entitled to absolute work product protection. (54 Cal. 4th at 486.)

Under Coito, the more an attorney's impressions are integrated, the more likely the attorney will be able to prevent disclosure based on the absolute privilege. However, in cases where the interview is not protected by the absolute privilege, the court will have to strike a balance. If opposing counsel demonstrates that withholding the statement would amount to unfair prejudice, counsel may have to turn it over; this is especially true in cases where the witness is unavailable.

Still, when an attorney requests a witness's recollection of an incident, he or she has spent time and effort to learn who the witness is, where the witness is located, and whether or not the witness is willing to talk. A hard-and-fast rule requiring the attorney to divulge this information to an opponent would violate the statutory mandate that counsel not ride the coattails of their adversaries. And that is precisely why the California Supreme Court held in Coito that recorded witness statements procured by an attorney are entitled to at least qualified work product protection under section 2018.030(b). Using that foundation, an attorney facing a discovery request must be prepared to demonstrate why divulging the witness's statement would be unfairly prejudicial.

Case-by-Case Analysis
Since the 1970s, courts have resolved work product disputes on a case-by-case basis. (City of Long Beach v. Superior Court, 64 Cal. App. 3d 65, 71 (1976).)

Ultimately, a recorded witness statement can contain both interpretive and evidentiary material. For this reason, it is up to the attorney to anticipate future discovery requests and be sure to clearly ask the types of questions that allow for absolute protection (see "Tips for Heading Off Disclosure," at right). Upon adequate showing that production would reveal the attorney's tactics, impressions, or evaluations of the case, the trial court must then determine whether absolute work product protection applies to some or all of the material at issue. (Coito, 54 Cal. 4th at 496.)

Armed with knowledge of the Coito decision and the working particulars of the work product privilege, attorneys should tailor their investigative approach to prevent discovery disputes before they arise. And when disputes do arise, at least the litigating attorney will know the best arguments to make.

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Tips for Heading Off Disclosure
When analyzing competing claims of privilege and prejudice, consider:

- Unavailable witnesses. Whenever a witness is unavailable, opposing counsel will argue that withholding a statement from that person is prejudicial, and therefore discoverable under the qualified work product privilege. Counsel should always keep an eye out for this issue.

- Strategic planning. Because recorded witness statements may be discoverable as qualified work product, attorneys should determine at the outset of the interview whether they will integrate their impressions into the questioning, and if so, to what extent. Failing to consider this until after the interview has been completed may open the door to argument in favor of disclosure.

- Choice of interviewer. Statements that are taken directly by trial counsel are more likely to reflect the attorney's impressions and strategy, and hence they are more likely subject to the absolute privilege. But should a dispute arise over what the person interviewed actually said, that strategy can thrust trial counsel into the unenviable position of becoming a witness too.

- Using an investigator. This is probably the best approach, as it insulates counsel from becoming a witness. But it also makes it less likely that the questioner will reveal attorney work product.

- Types of questions. If the goal is to find out what happened, use simple, straightforward questions that will get the witness talking. On the other hand, if there is concern that the witness might say too much, counsel should utilize structured questions that call for specific answers. Although such interrogation may reveal some legal theory or strategy, the qualified work product privilege may be protection enough. And if the witness is still available, one can provide the name and address and let the other side conduct a deposition if it chooses to do so.

- Don't delay. Whether you're using an investigator or conducting the inter- view yourself, make sure that witnesses are contacted early in the investigation. Gather information while it is still fresh in the witness's mind.

- Client involvement. It's important to involve the client in the entire case-planning process. Advise them about the risks and benefits of obtaining witness statements. Doing so will help prevent unpleasant surprises, should a discovery motion yield an unfavorable result.

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Craig A. Roeb is a partner and Zachary P. Marks is an associate in the Los Angeles office of Chapman, Glucksman, Dean, Roeb & Barger, where they focus on business, employment, and products liability law.

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