Recorded Statements and Work Product Protection
On June 25, 2012, the California Supreme Court rendered its decision on a critical issue for attorneys and investigators alike: Is a recorded statement taken by an attorney, or her/his agent, afforded attorney work product protection?
For years, most attorneys in Southern California would respond “of course it’s protected!” This is in part due to the California appellate decision of Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal. App. 4th 214, which held that recorded witness statements are entitled to absolute work product protection and are never discoverable. Most California practitioners followed this general rule of thumb until the case of Coito v. Superior Court, (2010) 182 Cal. App. 4th 758.
In Coito, the Appellate Court reviewed the decision of a trial court where production of recorded statements of eyewitnesses obtained by defense counsel were held to be absolute work product, therefore not discoverable. Upon review, the Appellate Court rejected the reasoning of Nacht & Lewis Architects, and held that a recorded statement receives no attorney-work product protection because the statement did not contain an attorney’s impressions, conclusions, or opinions. Therefore, defendant was required to disclose recorded statements it took of the eyewitnesses. Defendant petitioned the California Supreme Court, and review was granted.
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In the California Supreme Court’s review of Coito v. Superior Court, the Court reversed the Appellate Court and held that recorded statements taken by an attorney or his/her agent are afforded work product protection. However, the Court took a step back from Nacht & Lewis Architects, holding that recorded statements are afforded a minimum of qualified work product. In making this decision, the Court reasoned that witness statements may be entitled to absolute work product protection if the party claiming the privilege can show disclosure would reveal the “attorney’s impressions, conclusions, opinions, or legal research and theories.” If not, then the items may be subject to discovery if the requesting party can show that denial of discovery will unfairly prejudice the requesting party in preparing its claim/defense, or will result in an injustice. In sum, parties may now be able to obtain a recorded statement that was previously undiscoverable if that recorded statement is of a witness that is not reasonably available (e.g. passed away, or is not in the country).
The California Supreme Court also addressed one other issue: Whether a party responding to California Judicial Council Form Interrogatory 12.3 can avoid disclosing the identity of witnesses. Specifically, the interrogatory requests: “Have you or anyone acting on your behalf obtained a written or recorded statement from any individual concerning the incident?” Under Nacht & Lewis Architects, such information was provided qualified work product protection. The Supreme Court, however, has added a twist: A party can claim qualified work product protection as long as it can show that disclosing such information would reveal the attorney’s tactics, impressions, or case evaluation. While not much guidance was provided, perhaps the best example the Court gave was that if an attorney took a recorded statement from every eyewitness, then responding to this interrogatory would not be a violation of work-product protection since such individuals had to be disclosed anyway in other interrogatories. However, if an attorney chose a select few individuals to obtain statements from, then such information could invoke qualified work product protection.
Conclusion
The California Supreme Court’s recent decision provides California practitioners with a sense of relief, as the Appellate Court decision was a complete disregard for the attorney work-product doctrine. However, with the rough guidelines provided as to what is “absolute” or “qualified” work product, expect California courtrooms to have more motions filed on these issues in the near future.
