On June 25, 2012, the California Supreme Court set forth new rules regarding the discoverability of witness statements in Coito v. Superior Court of Stanislaus County, No. S181712 (Cal. 2012). The issue before the court was what work product protection, if any, should be accorded two items: (1) recordings of witness interviews conducted by investigators employed by defendant’s counsel, and (2) information concerning the identity of witnesses from whom the defendant’s counsel obtained statements.
The California Supreme Court concluded that witness statements procured by an attorney are entitled, as a matter of law, to at least qualified work product protection. Regarding the level of work product protection, the court held that the witness statements may be entitled to absolute protection if the attorney resisting discovery of the statements makes a preliminary showing that disclosure would reveal his or her impressions, conclusions, opinions, or legal research or theories. The opposing party can overcome this privilege only by demonstrating that denying discovery will unfairly prejudice her in preparing her claim or will result in an injustice.
As to the identity of witnesses from whom defendant’s counsel obtained statements, the court held that such information is not automatically entitled to absolute or qualified work product protection. To invoke the privilege, the party resisting discovery must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case. If defendant could do so, such information should be afforded absolute protection. If, on the other hand, the defendant persuades the trial court that disclosure would result in opposing counsel taking undue advantage of the attorney’s industry or efforts, the information should be afforded qualified protection.