California Supreme Court Addresses Work Product Protection Applicable to Witness Identities and Recorded Interviews

In Coito v. Superior Ct., 54 Cal. 4th 480 (2012), the California Supreme Court addressed whether, and to what extent, the following items of evidence were entitled to attorney work product protection:  (1) recordings of witness interviews conducted by investigators employed by counsel, and (2) information concerning the identity of witnesses from whom counsel obtained statements.

As to the interview recordings, the Court held that they “are entitled as a matter of law to at least qualified work product protection.  The witness statements may be entitled to absolute protection if [the party asserting work product protection] can show that disclosure would reveal its ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’  If not, then the items may be subject to discovery if [the party seeking disclosure] can show that ‘denial of discovery will unfairly prejudice [him/her/it] in preparing [his/her/its] claim … or will result in an injustice.'”  Id. at 486.

As to the identity of witnesses from whom counsel has obtained statements, the Court held that “such information is not automatically entitled as a matter of law to absolute or qualified work product protection.  In order to invoke the privilege, [counsel] must persuade the trial court that disclosure would reveal the attorney’s 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.


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