By John R. Clifford, Esq., Edward P. Garson, Esq. & -Ian A. Stewart, Esq. of Wilson Elser Moskowitz Edelman & Dicker LLP
The early investigation of a claim can be critical to an early evaluation of potential liability. Evidence can be preserved, and those involved can provide key information regarding the circumstances of the loss. However, what parts of that investigation are privileged and under what circumstances must the results of an investigation be divulged in discovery? The answers were made clearer by the Supreme Court of California recently. In Coito v. Superior Court of Stanislaus County (June 25, 2012) 2012 DJ DAR 8713, the Court reversed the lower court’s decision, holding that any witness statement obtained through an attorney-directed interview is entitled to at least qualified work product protection. The case was remanded to the trial court to determine whether the witness statements were so “inextricably intertwined” with comments and notes by the attorney as to constitute the attorney’s impressions of the witness and therefore absolutely privileged.
When a 13-year-old boy drowned on the Tuolumne River, his mother filed a wrongful death suit, after which a defendant noticed the deposition of a number of witnesses who were present at the accident site. Counsel for co-defendant State of California sent two investigators to obtain recorded interviews with four of the witnesses. At the deposition of one of the four previously interviewed witnesses, the State’s counsel used the content of the witness’s recorded interview in questioning the witness. Counsel for the plaintiffs demanded production the witness interviews, which resulted in the dispute over the extent of the work product privilege. The trial court ruled that the statements were privileged, but that the State’s attorney waived the privilege as to the recorded statement used at the witness’s deposition. Plaintiff’s writ of mandate to the Court of Appeals was granted and the Appellate Court ruled that the witness statements were not privileged and should be disclosed.
Work Product Protection
The attorney work product protection was first recognized by the U.S. Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495. The Court recognized that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference.” In California, the legislature enacted Code of Civil Procedure § 2018.030, which provides:
(a) A writing that reflects an attorney’s impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances.”
(b) The work product of an attorney, other than a writing described in subdivision (a), 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.
Depending on the showing made by an attorney, witness statements are either qualified or absolutely privileged. In the event a statement is subject to the qualified work product privilege, the party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party or result in an injustice. If absolutely privileged, the statements are not discoverable.
The Coito Decision
According to the Supreme Court’s opinion in Coito, the absolute privilege applies when the witness statements are “inextricably intertwined” with comments and notes by the attorney concerning the attorney’s impressions of the witness, the witness statements or other issues in the case. It may also be present depending on the nature of the questions asked and why the attorney chose to ask or not ask a witness particular questions.
The court explained that there can be no bright-line rule as to whether a witness statement is always absolutely privileged, and accordingly the issue must be determined on a case-by-case basis. The court ruled 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.” The trial court should then conduct an in camera review to determine whether the absolute privilege applies, which would preclude production.
The Coito decision also provides clarification concerning whether disclosure of the identity of witnesses from whom the party has obtained a witness statement would implicate the work product privilege as requested in California Form Interrogatory No. 12.3, one of many basic discovery requests that the California Judicial Council . Interrogatory No. 12.3 requests:
“Have you or anyone acting on your behalf obtained a written or recorded statement from any individual concerning the incident? If so, for each statement, state:
“(a) the name, address, and telephone number of the individual from whom the statement was obtained;
“(b) the name, address, and telephone number of the individual who obtained the statement;
“(c) the date the statement was obtained; and
‘(d) the name, address, and telephone number of each person who has the original statement or a copy.”
The court acknowledged that litigants typically know the full universe of witnesses and the court recognized that the decision to obtain recorded statements of some but not all witnesses may reveal an attorney’s impressions. However, the court balanced that fact with the practicalities of modern litigation and ruled that information responsive to Form Interrogatory 12.3 is not automatically entitled to work product protection and that the interrogatory “usually must be answered.” The court provides an objecting party an avenue to obtain work product protection if it can make the preliminary foundational showing that to respond to the interrogatory would reveal the attorney’s impressions or result in opposing counsel taking undue advantage of the attorney’s work efforts.
The Supreme Court sent the case back to the trial court to determine whether the absolute privilege or qualified privilege applies, and if it is the qualified privilege, whether the plaintiff can make a sufficient showing of unfair prejudice or injustice to obtain the statements. The Supreme Court affirmed the trial court’s conclusion that the State waived the work product privilege to the extent the one recorded statement was used to examine the witness during his deposition.
The Coito decision reaffirms the need for clients to communicate with counsel early concerning the investigation that should be conducted after an accident. The attorney can then direct the necessary investigation and analyze the manner in which witness information should be obtained to provide the necessary work product protection should the matter result in litigation.
If you have questions about this case or other issues regarding civil litigation in California, please contact: John R. Clifford - 619.881.3320 -firstname.lastname@example.org,Edward P. Garson -