Mediation Message No. 77

MICHAEL D. MARCUS’S MEDIATION MESSAGE NO. 77

WORK PRODUCT PROTECTION OF WITNESS STATEMENTS

The topic of this Mediation Message, the application of the work product doctrine to attorney obtained witness statements and to the identification of those witnesses, could have been the subject of an Arbitration Insight, but is discussed here because knowledge, or lack thereof, of an opponent’s case is equally important to settling cases.

Coito v. Superior Court (2012) 54 Cal.4th 480 holds, depending on the circumstances, that either absolute or qualified work product protection applies to witness statements obtained by attorneys or their agents. To a lesser extent, the doctrine also protects the identities of those same witnesses. Coito involved a motion by a plaintiff to obtain the recorded statements of witnesses to a teenager’s drowning. The defendants’ counsel had provided investigators with the questions to be asked.

The discovery of witness statements obtained by attorneys or their agents.

Coito holds that witness statements obtained by attorneys or their agents are entitled to absolute work product protection, pursuant to C.C.P. section 2018.030, subd. (a), when the statements would reveal “impressions, conclusions, opinions, or legal research or theories” of the attorney. (Id. at pp. 495-496.) “This may occur not only when a witness’s statements are ‘inextricably intertwined’ with explicit comments or notes by the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. (Citation.) It also may occur when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important. Lines of inquiry that an attorney chooses to pursue through followup questions may be especially revealing. In such situations, redaction of the attorney’s questions may sometimes be appropriate and sufficient to protect privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness’s statements will reveal what questions were asked. Moreover, in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses. (Citation.) These are circumstances where absolute work product protection may apply.” (Id. at p. 496.)

The party resisting discovery of the witness statement, or a portion thereof, because it “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” must make a preliminary or foundational showing in support of the claim. The trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material. (Id. at pp. 499-500.)

According to Coito, attorney directed witness statements that do not reveal the attorney’s thought processes are, nonetheless, entitled on policy grounds to qualified work product protection under section 2018.030, subd. (a), because “The witness statement would not exist but for the attorney’s initiative, decision, and effort to obtain it.” (Id. at p. 495.) Moreover, “a default rule authorizing discovery of witness statements procured by an attorney would impede the Legislature’s intent ‘to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.’ (§ 2018.020, subd. (a).) If attorneys must worry about discovery whenever they take a statement from a witness, it is reasonably foreseeable that fewer witness statements will be recorded and that adverse information will not be memorialized.” (Id. at pp. 496-497.) Accordingly, such  qualified work-product  material “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. (Section 2018.030, subd. (b).)” (Id. at p. 486.)

Statements obtained by attorneys or their agents are to be contrasted with those prepared independently by a witness and then given to an attorney; these statements are not protected by the work product doctrine. (Id. at. pp. 494-495.)

The discovery of a witness’s identification from whom a statement was taken by an attorney.

Coito also discusses how litigants should respond to form interrogatory no. 12.3, which asks, “have you or anyone acting on your behalf obtained a written or recorded statement from any individual concerning the incident?” This interrogatory also requests the name, address, and telephone number of the witness and the date the statement was obtained. Whether such information is entitled to absolute or qualified protection is a question of fact and “usually must be answered” because it is not evident that the interrogatory “implicates the policies (see the above discussion regarding policy grounds) underlying the work-product privilege in all or even most cases.” (Id. at p. 502.)

Coito holds that attorneys who want to invoke the work-product doctrine as a response to interrogatory no. 12.3 must persuade the trial court that disclosure would reveal their tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege). (Id. at p. 486.) “(A)s an example, where it appears that an attorney has sought to take recorded statements from all or almost all of the known witnesses to the incident, compelling a response to form interrogatory No. 12.3 is unlikely to violate the work product privilege.” (Id. at p. 502.) Upon a showing of either absolute or qualified protection, “the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute.” (Id. at p. 502.)

Judge Michael D. Marcus (Ret.)

ADR Services, Inc.

1900 Avenue of the Stars, Suite 250

Los Angeles, California 90067

(310) 201-0010

Copyright Michael D. Marcus, July 2012

Please visit my website at www.marcusmediation.com for information about my mediation and arbitration background and experience. Copies of my previous Mediation Messages and Arbitration Insights are available by going to the articles link on the website.

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