Work Product or Not? California Supreme Court Provides Insight on Recorded Statements in Coito v. Superior Court

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.

California Supreme Court Review

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.


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.

Be Careful What You Send Your Testifying Experts

In a case of first impression, the Pennsylvania Superior Court adopted the "bright line" rule, followed by a majority of jurisdictions, that all information considered by a testifying expert, including information typically protected under the attorney work-product privilege, is discoverable.In Barrick v Holy Spirit Hospital, No. 1856 MDA 2009 (Pa. Super. Sept.16, 2010), the court embraced the notion that once information is considered by an expert, it is fair grounds for full discovery and cannot be shielded.

In Barrick, a plaintiff sought discovery of letters and emails between the defendant's testifying expert and counsel that included trial strategies and tactics. Plaintiff Barrick was injured when a chair collapsed in the defendant's cafeteria. The plaintiff was treated by Dr. Green who was designated to testify as the defendant's expert. The plaintiff subpoenaed Dr. Green's records, but were furnished the treatment records only. The defendant refused to produce emails and letters exchanged between counsel and Dr. Green that included counsel's views concerning the expert's onions. The trial court ordered the production of all records, including communications between counsel and Dr. Green.

On appeal, the defendant argued that discovery permitted under the Pennsylvania rules does not include disclosure of mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. Judge Olson, writing for the Superior Court majority, noted that the work product privilege protects certain disclosures, but that the privilege is not sacrosanct and may yield if the information sought becomes relevant to an issue in a lawsuit [page 12]. Judge Olson also noted that the permissible scope of expert discovery is broad and may conflict with other discovery rules. In reconciling the conflict, the court ruled "that if an expert witness is being called to advance a party's case-in-chief, the expert's opinion and testimony may be impacted by correspondence and communications with the party's counsel; therefore, the attorney's work-product doctrine must yield to discovery of those communications". [page 10] Judge Olson reasoned that a party is entitled to discover the extent of a lawyer's influence over an expert's opinions, to test the weight and veracity of the expert's conclusions, and to determine "whether counsel directed [the expert] to reach certain conclusions or to disregard certain facts or take other facts into consideration" [page 13]

While this ruling is consistent with extant federal case law [See e.g., Galvin v. Pepe, No. 09-cv-104, 2010 WL 3092640 (D.N.H. Aug. 5, 2010)], proposed amendments to FRCP Rule 26 would require production only of “facts or data” considered by a testifying expert. But the amendments would continue to allow discovery of communications between a lawyer and a testifying expert about: (1) the compensation for the expert’s study or testimony, (2) the facts or data provided by the lawyer that the expert considered in forming opinions, and (3) the assumptions provided by the lawyer that the expert relied upon to form an opinion. These amendments are scheduled to go into effect December 1, 2010.

This decision underscores the importance of managing information sent to any testifying expert. Many courts will continue to apply the "bright line" test, even if privileged documents are inadvertently disclosed to the expert [see e.g., MVB Mortgage Corp. v. Federal Deposit Insurance Corp., No. 08-771, 2010 WL 582641 (S.D. Ohio Feb. 11, 2010), where the court concluded that “once an expert sees information, even if it is the product of an inadvertent disclosure of something otherwise privileged, that information becomes part of the expert’s mental database, and the opposing party is entitled to test how, if at all, knowing that information may have influenced the expert’s opinion."] Subrogation practitioners should also consider that many states do not have rules that follow the amended federal rules, so the "bright line" test will likely remain in force and apply to all information sent to the expert.

California's Attorney-Client Privilege Upheld

The California Supreme Court in the case of Randall v. Costco Wholesale Corporation, 2009 DJD 16727 upheld the attorney-client privilege set forth in Evidence Code §954. The privilege attaches to any legal advice given in the course of an attorney-client relationship, regardless if the communication contains unprivileged material.See full size image

Costco Wholesale Corporation (“Costco”), retained counsel to provide legal advice regarding whether certain Costco warehouse managers in California were exempt from California’s wage and overtime laws. Counsel undertook this assignment and provided an opinion letter to Costco on the issue.

Several years later, Costco employees filed a class action against Costco, claiming that from 1999 through 2001, Costco had misclassified some of its managers as “exempt” employees and therefore had failed to pay them the overtime wages they were due as non-exempt employees. During the course of the litigation, plaintiffs sought to compel discovery of the opinion letter prepared by Costco’s counsel. Costco objected on the grounds that the letter was subject to the attorney-client privilege and attorney work product doctrine. Plaintiffs disagreed, arguing that the letter contained unprivileged matter and that Costco had placed the contents of the letter in issue, thereby waiving the privilege.

The Supreme Court held that the attorney-client privilege attached to the letter in its entirety, irrespective of the letter’s content. Further, Evidence Code §915 prohibits disclosure of the information claimed to be privileged as a confidential communication between attorney and client “in order to rule on the claim of privilege.” In addition, the Court found that a party seeking relief from a discovery order that wrongfully invades the attorney-client relationship need not also establish that its case will be harmed by disclosure of the evidence.

The holding bolsters a subrogating carrier's argument that correspondence from its counsel which includes facts and opinions about a loss, recovery potential, site inspections and conversations with witnesses are protected by the attorney-client privilege.