by Carole J. Buckner
Your business client asks you to investigate a potential civil claim by an employee against the company. There may be several other witnesses to the alleged conduct, which occurred over a period of several years, and your client would like you to conduct a series of interviews. A second client, a manufacturer, asks you to investigate an accident involving its product. Again, there are a number of witnesses who are not parties to the case. In each case, you, or your agent, will be speaking with various witnesses to the facts. Perhaps your client will provide information about possible witnesses and then you will select those who should be interviewed from among that list of potential witnesses. Then, you will evaluate the potential claims and formulate a strategy for a series of interviews, including potential questions for the witnesses to be interviewed.
Somewhere in the process you will decide how you or your agent will memorialize the interviews. You will need to decide what to include, for example, your own thoughts and impressions of the witness, and what to leave out. Are you better off putting everything into one memorandum, including your thoughts and impressions, or should you take more of a “just the facts” approach to memorializing the witness interviews? You will need to anticipate the inevitable document request seeking production of the writing (or recording) memorializing each interview, and the expected interrogatory seeking identification of the persons you interviewed. How you set this up on the front end determines whether the materials and information are discoverable down the line. The applicable law is addressed in the California Supreme Court’s recent decision in Coito v. Superior Court, 54 Cal. 4th 480 (2012), which provides detailed guidance regarding the application of the work product privilege to witness statements obtained through attorney-directed interviews, while disapproving a series of earlier cases demarcating the legal landscape on these issues. This article discusses the Coito case and the strategic considerations lawyers must address in light of the decision.
Coito involved an investigation conducted by the State of California in a wrongful death case following a drowning in which the government’s agent, acting at the direction of its lawyer, audio-recorded interviews of multiple witnesses. State investigators interviewed four of six (not all) juvenile witnesses to the drowning, asking questions provided by counsel. At the deposition of one of the witnesses, the State’s counsel used the contents of the recorded interview in questioning the witness, and the plaintiff followed up with discovery requests including: (1) a document request seeking production of the recorded witness interviews; and (2) a Judicial Council form interrogatory seeking the identity of the witnesses interviewed. Objections followed, invoking the work product privilege.
The trial court, relying on Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214 (1996), held that the witness statements were absolutely privileged, and the information requested by the interrogatory regarding the identity of witnesses fell within qualified work product protection. Coito, 54 Cal. 4th at 486.
The appellate court reversed, and held that the witness statements were discoverable, indicating that witness statements are not automatically protected from discovery, and stating that most witness statements are not work product, as most do not reveal “significant tactical or evaluative information.” Coito v. Superior Court, 182 Cal. App. 4th 758, 106 Cal. Rptr. 3d 342, 351 (2010). In doing so, the appellate court declined to follow Nacht. The appellate court majority also indicated that lawyers could “tailor” their interviews to avoid revealing tactical information or impressions if they wished to do so. Id. In their 2010 article in this column addressing the appellate level decision, Lisa Glasser and Alastair Gamble concluded that the appellate level decision missed an opportunity to provide clear guidance in the area, and conflated the absolute and work-product protections. Lisa Glasser & Alastair Gamble, Coito v. Superior Court and Discoverability of Witness Statements, 52 Orange County Lawyer 38 (September 2010).
Work Product Protection Not Automatic
On review, the California Supreme Court reversed and remanded, concluding the appellate court had erred, and held that the witness statements were entitled to “at least” qualified work product protection, and “may be” entitled to absolute work product protection. Coito, 54 Cal. 4th at 486. In the process of rendering its decision, the court revisited the United States Supreme Court’s opinion in Hickman v. Taylor, 329 U.S. 495 (1947) to examine the policies implemented by California’s work product statute as revealed through the statute’s legislative history. As for the identity of witnesses, the court held that, although such information is not automatically protected work product as a matter of law, in some cases disclosure may show an attorney’s tactics or may result in opposing counsel taking unfair advantage of his opponent’s efforts, so that either the absolute or qualified work product privilege may apply. Coito, 54 Cal. 4th at 501. The intricacies of each situation are litigated on a case-by-case basis.
Starting with the statutory framework, the court recognized that, in the context of civil discovery, attorney work product is protected absolutely and therefore it is not discoverable under any circumstances where it includes an attorney’s impressions, conclusions, opinions, or legal research or theories. Id. (applying Cal. Code Civ. Proc. § 2018.030(a) (West 2010)). Otherwise, work product receives “qualified” protection and generally is not discoverable unless the court determines that denial of discovery would “unfairly prejudice” the party seeking discovery in preparing a claim or defense, or result in injustice. Id. (applying Cal. Code Civ. Proc. § 2018.030(b) (West 2010)).
Witness Statements & Absolute Work Product
The court determined that the witness statements embodied in the recordings were “entitled as a matter of law to at least qualified work product protection” and might be entitled to absolute protection, depending upon whether the defendant could show that disclosure would reveal the attorney’s impressions, conclusions, opinions, or legal research and theories. Id. at 486. Should a party asserting work product fail to make this showing, the recordings would constitute only qualified work product, which the opponent could discover only if it could show the required injustice or unfair prejudice. Whether each party can make the requisite showings in the Coito case itself remains to be determined on remand.
In clarifying the parameters of the absolute privilege, the court recognized that witness statements do not always reveal attorneys’ thoughts and impressions. A witness statement could be written to include a straight recitation of the statements of the witness without any of the attorney’s impressions. Where an attorney’s explicit comments or notes include impressions of the witness, the witness’s statements, or other issues in the case that are inextricably intertwined with the witness’s statements, absolute privilege applies. Id. at 495.
In addition, the court identified several other scenarios in which absolute work product protection may apply to a witness statement. One example the court mentioned is that the very questions that the attorney has chosen to ask (or not ask) may provide a window into the attorney’s theory of the case or evaluation of the importance of issues in a case making absolute work product protection available. Id. In practice, this may be difficult to detect from the memorandum itself. In addition, as a practical matter, persuading a court that a document that on its face recites the witness statement qualifies for absolute work product protection could be quite challenging.
Where impressions and thoughts of the attorney are intertwined with statements of a witness, and absolute work product applies, one option is the redaction of the attorney’s thoughts. But, does redaction of the attorney’s impressions from the witness statement resolve the issue? The answer is, “Maybe.” The court indicated that redaction “may sometimes be appropriate and sufficient” but at other times, redaction of questions may not suffice where the “witness’s statements will reveal what questions were asked.” Id. In addition, the fact that an attorney chose to interview a specific witness might reveal important tactical information, particularly in cases with numerous witnesses. Id.
Qualified Work Product Protection
In evaluating the application of qualified work product to witness statements, the California Supreme Court relied on two important policies underlying the work product doctrine. First, an attorney should be able to prepare and execute his or her strategy with privacy and without intrusion; otherwise attorneys would never write things down, resulting in inefficiency, poor service to clients, and an adverse impact upon the quality of justice. Id. at 496 (citing Cal. Code Civ. Proc. § 2018.020(a)). While attorneys must disclose non-privileged facts, and discovery of qualified work product may be appropriate where a witness is no longer available, or difficult to contact, generally, the party seeking discovery must show the necessity of invading the attorney’s privacy. A second related policy requires that attorneys should not take undue advantage of the efforts and industry of their adversaries. Id. (citing Cal. Code Civ. Proc. § 2018.020(b)).
Given these important statutory policies, the Coito court held that witness statements obtained through attorney-directed interviews qualify for “at least qualified work product protection,” absent a showing of unfair prejudice by counsel seeking discovery. Id. In so holding, the court disapproved, rejected, and distinguished a series of earlier cases suggesting or holding that witness statements taken by lawyers do not qualify for work product protection as a matter of law. In addition, the court rejected the dicta in Nacht stating that recorded statements obtained by counsel are entitled to absolute work product privilege. Id. at 495. Now, in order to determine whether a particular witness statement is protected by the work product privilege, attorneys must conduct an analysis regarding the content of the statement itself and whether revealing it would adversely implicate the policies underlying the work product doctrine. Rather than the relatively bright line rule of Nacht, the analysis of the discoverability of witness statements is somewhat more subtle.
Identity of Witnesses
As for the form interrogatory seeking the identity of witnesses who gave statements in a civil case, prior case law held that such information was entitled to work product protection as a matter of law where the recorded statements were taken by an attorney. Id. at 499 (citing Nacht, 47 Cal. App. 4th 214). The California Supreme Court held, however, that such information is “not automatically entitled as a matter of law to absolute or qualified work product protection,” that is, this information may very well be discoverable. Id. at 486. However, once again, “it depends.” The court said that “disclosing a list of witnesses from whom an attorney has taken recorded statements may, in some instances, reveal the attorney’s impressions of the case.” Id. at 495. The operative word is “may.”
In determining application of the work product doctrine to the identity of witnesses, it is important to assess the genesis of the witness statements, including (1) whether the statements were independently prepared by the witnesses; and (2) whether all witnesses or a subset of attorney-selected witnesses were interviewed. A list of witnesses who independently prepared statements and then turned the statements over to counsel would not invade work product privilege because it would reveal nothing about counsel’s impressions in the case. Id. at 501. If the attorney designated selected witnesses for interview from the universe of witnesses, the work product doctrine would more likely apply. If all witnesses were interviewed, a response to the form interrogatory is “unlikely” to violate the work product doctrine, presumably because deciding to interview all witnesses reveals little regarding strategy, while deciding to interview selected witnesses arguably does reveal a lawyer’s strategic thinking. Id. at 502.
If a party resisting disclosure of the identity of witnesses objects on work product grounds, then the objecting party must make a preliminary showing to persuade the court that disclosure of the identity would reveal the attorney’s tactics, impressions, or evaluation of the case such that the absolute work product privilege would apply. A showing that the disclosure would result in “taking undue advantage of the attorney’s industry or efforts” would trigger the qualified privilege. Id. (paraphrasing Cal. Code Civ. Proc. § 2018.020(b)). How the lawyer resisting discovery should make these showings without revealing and highlighting the very strategy and tactics the attorney wishes to protect is not detailed in the opinion. An in camera inspection is again available if necessary. Perhaps the attorney may state that witness interviews were conducted selectively and strategically based on the attorney’s evaluation of the case, and present the interviews themselves to the court in camera as proof.
Conducting Post-Coito Witness Interviews
After the Coito decision, attorneys must rethink how they conduct and memorialize witness interviews in view of a somewhat greater likelihood of discoverability. Front end decisions regarding whom to interview, and how to conduct and memorialize witness interviews, will implicate the ultimate discoverability of the interview. These considerations may vary depending on the witness, the type of case, the legal merits of the case, and other factors. At the threshold, will the attorney or client conduct the interviews? If the client conducts interviews without direction and selection of witnesses for interview by the attorney, work product protection will not be available. Assuming an attorney decides to conduct the interviews or direct another in doing so, the attorney will need to decide whether to interview some or all of the potential witnesses. A decision to interview all witnesses will reduce the likelihood of work product protection. The selection of witnesses based on strategic legal considerations will increase the likelihood of protection.
Next, an attorney will need to determine what questions are appropriate for the interview. At one end of the spectrum, asking a witness very basic questions about the event, e.g., “Tell me what happened,” may render the resulting statement discoverable. More nuanced questions that consider the strategic legal implications of the matter will tend to qualify the interview for absolute work product protection. Deciding not to ask certain questions may also reflect strategic considerations, making protection more likely.
In recording the statement, whether by audio or in writing, the interviewer must consider whether to integrate the attorney’s impressions with the witness’s statements, or, alternatively, the attorney may decide to record the witness’s statements, and preserve work product in the form of the attorney’s impressions through a separate set of attorney notes concerning the interview. Where the attorney is delegating the interview(s) to another person, the attorney should make such instructions clear to that person conducting the interviews, e.g., “Don’t ask any questions about . . . .” Considering the possibilities of redaction and an in camera review on the front end will also inform the process of memorializing the interview.
Responding to Discovery Requests for Witness Interviews
In responding to discovery requesting witness statements or the identity of witnesses interviewed, an attorney must carefully evaluate the content of each statement and the circumstances through which it was obtained. If an attorney was not involved in procuring the statement, or the statement contains exclusively the evidentiary statements made by the witness, then the work product protection will not apply.
Objection to requests for production of witness interviews on the grounds of absolute work product will be justified if the statements contain the attorney’s impressions and thoughts, especially where such thoughts and impressions are inextricably intertwined with the witness’s statement. It is possible, however, that redaction will resolve the issue and protect the attorney’s thoughts and impressions.
Objection based on qualified work product will be appropriate where production of the witness statement would invade the attorney’s privacy or allow an adversary to take advantage of his opponent’s efforts and industry in obtaining the statement. This will often be the case. However, where unfair prejudice or injustice would otherwise result, such as where an interviewed witness later becomes unavailable to the opposing party, the objection based on qualified work product will no longer be appropriate.
The Coito decision merits careful study by lawyers handling witness statements. Because discoverability depends on subtle distinctions concerning the methods through which witness statements are obtained and memorialized, attorneys must carefully consider such issues before embarking on a series of witness interviews.
Carole J. Buckner is the Chief Academic Officer at Abraham Lincoln University and Dean of the School of Law. Ms. Buckner is also the principal at Buckner Law Corp., in Irvine, California, and the co-chair of the OCBA’s Professionalism and Ethics Committee. She can be reached at firstname.lastname@example.org.