"Nacht & Lewis Architect v. Superior Court"

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. “… witness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection.”
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I received a copy of Petitioner Debra Coito’s Answering Brief on the Merits in the case of Coito v. Superior Court of the County of Stanislaus which is currently pending in the California Supreme Court. As you many of you are aware, Coito v. Superior Court (2010)182 Cal. App. 4th 758 refused to follow the 14-year old case Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 stating that witness statements are not attorney work product. Below is Petitioner’s argument that the Court of Appeal correctly held that signed or recorded verbatim statements of independent witnesses are potential evidence.
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Imagine this: At the beginning of the case you serve interrogatories asking basic information about your case. Thirty-five (35) days later you receive responses that state for every interrogatory:

“Vague, ambiguous, overbroad, burdensome, oppressive, not likely to lead to admissible evidence and the information is equally accessible to the defendant. Plaintiff further objects on the grounds of attorney client privilege and the work product doctrine. See Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214.

Does this sound all too familiar? The frustration level is high with attorneys as it will take at a minimum 121 days to get basic information if you have to file a motion to compel further responses. Meanwhile the court is scheduling a trial date and your discovery train hasn’t even left the station.
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The California Supreme Court will uphold Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). First of all, the basic purpose of the discovery is to take the “game element” out of trial preparation. See Weil and Brown Civil Procedure Before Trial (TRG 2009) ¶8:1 citing Greyhound Corp. v. Superior Court (1961) 56C2d 355, 376; Emerson Elec. Co. v. Superior Court(1997) 16 C4th 1101, 1107. Second, knowing whether or not there are witness statements is not protected under a document production as you would have to disclose the information in a privilege log, so why should it be different for interrogatories. Third, California has a work product statute–C.C.P. §2018.010 et seq.– which codifies California law which makes witnesses statements qualified work product. And, finally, C.C.P §2018.060 allows allows any party to request an in camera review of the documents, which the defendants in Coito v. Superior Court (2010)182 Cal. App. 4th 758(pdf). did not request. Do you agree?
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