Clash of the Courts: Are Witness Statements Privileged Information?
April 27, 2010
By: Lisa D. Angelo
Daily Journal, Perspective Section
For the first time in 14 years, one of California’s six appellate districts has challenged the frequently cited [Nacht & Lewis Architects, Inc. v. McCormick], 47 Cal. App. 4th 214 (1996) ruling, and urged the Supreme Court to “weigh in” on the issue.
The [Coito] case revisits the question: “Whether the statement of a witness, taken in writing or otherwise recorded verbatim by an attorney or the attorney’s representative, is entitled to the protection of the California work product privilege.” According to the Court of Appeal for the 5th Appellate District (Fresno), such statements are not so protected. This ruling, favoring disclosure, confronts the 3rd District Court of Appeal (Sacramento) contrary ruling in [Nacht & Lewis], head on.
The facts of the [Coito] case are simple: In March of 2007, six teenagers were engaging in conduct, possibly criminal, near a local river in Modesto. At some point, one of the teens drowned in the city river. A lawsuit against the state of California et al., filed on behalf of the deceased teen’s parents, promptly followed.
During discovery, one of the defendants, city of Modesto, noticed that depositions of all five teenagers indicated they were with the decedent on the day he drowned and had witnessed the entire occurrence. Anticipating the teens’ testimony, the Attorney General for the state of California sent two “special agents” from the California Department of Justice, Bureau of Investigation, to interview and take recorded statements from four of the five teen witnesses. The Attorney General provided the agents with particular questions for the interviews.
The first of the five depositions of the teens began two months after the interviews. During cross-examination, the Attorney General used some of the information gathered by the agents, against the witness. This exposure naturally raised eyebrows.
Nine days after the first teen’s deposition, plaintiff served the state with a form interrogatory 12.3 (which asks for the names and information about witnesses from whom a written or recorded statement is obtained) and sought production of the recorded interviews. The state objected to disclosure on work product grounds citing [Nacht & Lewis.] A motion to compel was soon filed by plaintiff and denied by the trial court.The plaintiff then filed a writ of mandate, which was granted by the 5th Appellate District.
In the majority’s view, prior to [Nacht & Lewis], both case law and public policy underlying the Civil Discovery Act favored disclosure. Thus, the majority declined to follow [Nacht & Lewis], which favored non-disclosure. In fact, both the majority and dissenting justices criticized [Nacht & Lewis] in their respective opinions. While the majority argued that [Nacht & Lewis] failed to provide any analysis for a decision that flew in the face of a “long line of contrary precedent,” the concurring and dissenting opinion argued that both [Coito] and [Nacht & Lewis] got it wrong when they rendered absolute opinions that failed to consider if the evidence could be [“qualified”] work product that may or may not be discoverable depending upon a case-by-case ruling by a trial court judge.
What rings true, throughout the majority opinion, is a desire for judges to return to the original policies underlying the privilege when it was first implemented: preservation of the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of their cases; and prevention of attorneys from taking undue advantage of their adversary’s industry and efforts.
In order to accomplish these original policies, the majority argued, “The Civil Discovery Act must be construed liberally in favor of disclosure.” As to “witness statements” taken by an attorney or an attorney’s representative, the majority cited a series of pre-[Nacht & Lewis] cases that it viewed collectively to stand for the proposition that “in such situations, the witness statement is in part the product of the attorney’s work […but] that is not to say, however, that the witness statement is entitled to work-product protection.”
With this pre-[Nacht & Lewis] “weight of authority” in mind, the 5th Appellate District majority held: [“written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product. And, because such statements are not work product, neither is a list of witnesses from whom statements have been obtained (the list requested by form interrogatory No. 12.3).” ]
It is clear that this holding lies in direct conflict with the 3rd Appellate District’s [Nacht & Lewis] opinion, which holds: ["compelled production of a list of potential witnesses interviewed by opposing counsel violates the work product doctrine, since production of the information necessarily reflects counsel’s evaluation of the case by revealing which witness or persons who claimed knowledge of the incident counsel deemed important enough to interview; and, notes that counsel takes during such interviews are further protected by the work product doctrine." ]
Despite the foregoing, until such time the Supreme Court is afforded the opportunity to take these issues up on appeal and resolve the conflict, [Nacht & Lewis] may still be cited in favor of non-disclosure while [Coito] will undoubtedly begin to be cited in zealous opposition.
The majority opinion in [Coito] is questioned by an equally lengthy concurring and dissenting opinion by relatively new appointee Justice Stephen Kane. According to Justice Kane, he would like to see the legislative loophole afforded in said section of the Act, considered and implemented. He also argued that unless an objection to form interrogatory 12.3 is accompanied by a “foundational showing that a response would actually disclose matters protected by the work product privilege (i.e., significant tactical information about the case) the objection should be overruled.
As to [Nacht & Lewis], Justice Kane agreed with the majority to the extent the 3rd Appellate District’s opinion holds “whenever an attorney records the substance of a witness’s statement, all of the written notes or recorded statements are protected by the absolute work product privilege.” Justice Kane’s dual problem with [Nacht & Lewis] and the majority in [Coito] is that both opinions create absolute resolutions and do not consider the happy “case-by-case” medium afforded in section 2018.030(b) of the Act.
After a lengthy analysis of the work-product privilege, which also included guidance on the difference between “qualified” and “absolute” protection, Justice Kane concluded by recommending that the approach noted by the Supreme Court in [Rico v. Mitsubishi Motors Corp.], 42 Cal. 4th 807 (2007) be implemented. Interestingly, in [Rico], the Court cited [Nacht & Lewis] with “apparent approval” when it noted “when a witness’s statement and the attorney’s impressions are ‘inextricably intertwined, ’the absolute work product protection extends to all portions of the written or recorded statement.” In my humble view, neither determining whether something is “inextricably intertwined” and/or permitting a trial court the continued discretion to arbitrarily rule upon the doctrine on a “case by case” basis, are good alternatives. There should be rules where everyone, including pro se litigants as Justice Kane acknowledged in his dissent, can easily locate, review and follow.
Should the Supreme Court take the [Coito] court up on its suggestion to get involved in the issue and should the Court like the direction the majority took – a return to the “pre-[Nacht & Lewis]” years - I would urge the Court to look even farther back and implement the foundational strategy afforded by the Supreme Court in [Hinkman v. Taylor] (which both the [Coito] majority and Justice Kane cited favorably in their respective opinions). Why reinvent a wheel that has been thoroughly briefed and appears to be working quite nicely in federal courts nationwide?
