The long awaited California Supreme Court decision on whether or not witnesses statements are protected by the work product privilege and thus not discoverable even in responding to a Form Interrogatory is in. The Supreme Court issued its opinion in Debra Coito v. Superior Court of Stanislaus County, S181812, Ct. App. F057690 this morning at 10:00 a.m. The Supremes held the following.
Absolute Work Privilege
“… witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection. Instead, the applicability of absolute protection must be determined case by case. 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.” (§ C.C.P. §2018.030 (pdf), subd. (a).) Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” Coito at 15.
Qualified Work Privilege
“…we hold that a witness statement obtained through an attorney- directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. (§ 2018.030, subd. (b).) If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it “reflects an attorney‟ impressions, conclusions, opinions, or legal research or theories” (§ 2018.030, subd. (a)), that party must make a preliminary or foundational showing in support of its 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. Coito at 15.
“…we note that form interrogatory No. 12.3 — in asking whether a party or its agent has “obtained” a written or recorded witness statement — appears to include within its compass any statement independently prepared by a witness and subsequently obtained by an attorney. Such statements “neither reflect an attorney‟ evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product.” (Nacht & Lewis, supra, 47 Cal.App.4th at p. 218.) Coito at 21.
“Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney‟ tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney‟ industry or efforts. Upon such a showing, 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. Of course, a trial court may also have to consider non-party witnesses‟privacy concerns. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶¶ 8:298 to 8:299.15, pp. 8C-88 to 8C-89.) Coito at 24.
The full opinion can be found at this link Debra Coito v. Superior Court of Stanislaus County, S181812, Ct. App. F057690