by Lisa Glasser & Alastair Gamble
Many practitioners assume that witness statements taken by attorneys or their agents are automatically shielded from discovery as work product. The questions that an attorney selects often are considered classic examples of material that “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories”—and therefore subject to absolute privilege under Code of Civil Procedure section 2018.030(a). This perception is bolstered by decisions such as Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), which held that recorded witness statements were entitled to absolute work product privilege because they would reveal counsel’s “impressions, conclusions, opinions, or legal research or theories.”
The recent California Court of Appeal decision in Coito v. Superior Court, 182 Cal.App.4th 758 (5th App.Dist. March 4, 2010) (requiring disclosure of witness interviews taken by agents of the Attorney General), review granted 110 Cal.Rptr.3d 462 (June 9, 2010), makes clear that it is not always safe to assume that witness statements will be shielded from discovery. However, the decision misses an opportunity to provide clear guidance in this area. For example, it does not explain how to distinguish witness statements which are “inextricably ‘intertwined’” with the attorney’s impressions, conclusions, or opinions, which Coito recognizes as non-discoverable, from other witness statements. Moreover, the Coito majority conflates the distinct statutory concepts of absolute and qualified work production protection. If the Coito decision is upheld on appeal, this problem may engender confusion among trial courts and necessitate future appellate analysis. Below, we discuss what Coito did and did not resolve and what guidance can be distilled from its reasoning for practitioners seeking to maintain witness interview documents within the scope of the work product protection.
Statutory Overview of the California Work Product Privilege California’s version of the work product privilege doctrine is codified as Code of Civil Procedure 2018.010 et seq. (“Attorney Work Product statute”). The Attorney Work Product statute recognizes two tiers of work product privilege: absolute and qualified. Absolute privilege—that which renders material non-discoverable under any circumstance—applies to work product that “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” Cal. Code of Civ. Pro 2018.030(a). With respect to other types of work product, a qualified privilege exists which can be overcome by a court determination “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 of Civ. Pro 2018.030(b).
The Coito Decision—Summary and Analysis In Coito, the mother of a deceased child sued the State after her son drowned in the Tuolumne River. The Attorney General sent special agents from the California Department of Justice, Bureau of Investigation, to take recorded interviews of four children who witnessed the incident. During the litigation, the plaintiff sought discovery of the witness statements. Relying primarily upon Nacht, the trial court held that the statements were absolutely privileged as statements taken by agents of the State’s attorney. By a 2-1 majority, the Court of Appeal reversed and held that the witness statements did not fall under either of California’s two tiers of work product protection.
The Coito majority held that Nacht was a “cursory” opinion containing “no analysis to support” its conclusion. Moreover, the court noted several other appellate cases which had held that certain witness statements were not entitled to protection under the work product doctrine, including Greyhound v. Superior Court, 56 Cal.2d 355 (1961); Kadelbach v. Amaral, 31 Cal.App.3d 814 (1973); and People v. Williams, 93 Cal.App.3d 40 (1979).
The Coito majority was unswayed by the argument that statements recorded by a lawyer necessarily reveal the thoughts and strategies of the lawyer based on the: 1) identity of the person being interviewed; and 2) the questions asked. According to the majority opinion, it would be an “unusual” case where such knowledge would “reveal any significant tactical or evaluative information” and “competent counsel will be able to tailor their interviews so as to avoid” revealing their thoughts about the case “should they choose to do so.”
The majority recognized three exceptions to its general holding. . . . First, a memorandum written by an attorney, after taking a statement from a potential witness, summarizing the attorney’s “impressions and conclusions” was cited as a “classic example of a writing that is protected by the absolute privilege.”
Second, citing Rodriguez v. McDonnell Douglas Corp., 87 Cal.App.3d 55 (1978), the Coito majority noted that witness statements that are “inextricably ‘intertwined’” with the attorney’s impressions, conclusions or opinions would be subject to absolute protection.
Third, in the “unique” situation where a particular witness statement would reveal interpretive information, the attorney may request an in camera hearing for the “opportunity to convince that court that the interview or some portion of it should be protected as qualified work product.” 182 Cal.App.4th at 351 (emphasis added)
The Coito decision sends a clear message that witness statements are not automatically shielded from discovery merely because they were taken by an attorney or an attorney’s agent. However, in concluding that most witness statements are not work product, its reasoning is unclear and conflates the absolute and qualified work product privileges.
As discussed above, the Attorney Work Product statute distinguishes between absolute and qualified privilege based upon whether the work product reveals “an attorney’s impressions, conclusions, opinions, or legal research or theories.” The Coito majority writes that neither the Attorney Work Product statute “nor any other provision of the Civil Discovery Act” describes or defines what is and what is not qualified work product, but that the courts have defined it largely as “derivative” material—i.e., material “‘created by or derived from an attorney’s work on behalf of the client that reflects the attorney’s evaluation or interpretation of the law or the facts involved.’”
But when the Coito majority arrives at its determination of whether witness statements taken by an attorney or her agent constitute work product at all, it hinges its analysis on whether the witness statement reveals something “significant about the attorney’s impressions, conclusions, or opinions about the case.” In other words, the court conflates the definition of work product generally with that of absolutely privileged work product. Such an interpretation would render section (b) of the Attorney Work Product statute surplusage.
Moreover, when a client hires a lawyer to handle litigation, factual development of the case is one of the most important functions the lawyer and her agents perform. To arrive at the Coito majority’s conclusion even under the correct analysis, one must agree that the formulation of interview questions and the identification of potential witnesses does not involve the attorney’s evaluation or interpretation of the law or the facts involved in the case. In other words, the conclusion assumes that regardless of the phrasing, attorney questions essentially amount to variations of no more than, “tell me everything that you know.” This is not a truism in every case (and perhaps not in most cases). However, the court provides no guidance on how to make that determination in future cases.
Another issue left unresolved by Coito is what characteristics of a witness statement would bring it within the three identified exceptions, or even who would have the burden to establish that the material at issue is or is not privileged work product under these exceptions. Even more confusingly, the Coito majority says of its last exception—where a particular witness statement reveals interpretive information—that in this “unique” situation the court might determine that the statement or portions of it are entitled to qualified protection. But if the statement did in fact reveal interpretive information, why would it not be entitled to an absolute privilege?
In Practice For the reasons discussed above, the Coito opinion does not clearly define the contours of the work product doctrine as it applies to witness statements. The decision is now on review and thus is not currently citeable, further complicating the ability of practitioners to discern clear guidance from it. However, Coito does send a clear message that—at least in some California courts—a verbatim memorialization of a witness interview is unlikely to be shielded from discovery. The opinion suggests that an attorney wishing to keep witness interviews within the work product privilege should manifest her own impressions and thoughts regarding the witness on the face of the witness statement. Moreover, since a court following the reasoning of Coito would order redaction and production of verbatim transcription of witness questions and answers, integrating such impressions throughout the summary may provide additional protection.
Finally, for cases in which third party witness interviews are anticipated to play a significant role in shaping case strategy, it may be advisable to consider a federal or out-of-state forum if available. Federal courts have long held that interview notes taken by an attorney in anticipation of litigation constitute privileged attorney work product, subject to the substantial need/undue hardship exception that permits discovery of such work product in very narrow situations. Fed.R.Civ.Pro. 26(b)(3); Hickman v. Taylor, 329 U.S 495 (1947); see also Sandra T.E. v. South Berwyn Sch. Dist., 310 Fed.Appx. 927 (7th Cir. 2010). Indeed, the North District of California recently refused to follow Coito because of distinctions between federal and California law regarding work product. Mitchell Engineering v. City and County of San Francisco, 2010 WL 1853493, at 2 (N.D.Cal. May 6, 2010) (“because the work product doctrine is not an evidentiary privilege but a limitation on discovery, the scope of the doctrine is ‘determined by federal law, even when the federal court sits in diversity.’ . . . Coito is therefore not binding in the present case”) (citations omitted).
Lisa Glasser is a litigation partner in the Newport Beach office of Irell & Manella. Alastair Gamble is an employment associate in the Los Angeles office of Baker & Hostetler.