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California Supreme Court Addresses Disclosure of Recorded Witness Statements and Witness Lists

2012 | Topics: Product Liability, Class Actions, Warranty, Business Litigation

In Coito v. Superior Court of Stanislaus County (2012) 54 Cal.4th 480, the California Supreme Court addressed the level of protection for independent witness interviews conducted by attorneys and/or investigators, and information concerning the identity of witnesses from whom counsel or counsel’s investigator has obtained statements (usually sought through form interrogatory 12.3). The Fifth District Court of Appeal in California previously held that there was no absolute or qualified work product protection for this information. The California Supreme Court disagreed, ruling that with regard to the protections surrounding the witness interviews, "we hold that a witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice.” Id. at p. 499.

The court added that if the party resisting discovery claims that a witness statement is absolutely protected because it “reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” that party must make a preliminary showing in support of its claim. Id. at pp. 499-500. The trial court may then make an in camera inspection to determine whether absolute work product protection applies to the information. Id. at p. 500.

With regard to form interrogatory No. 12.3, the court stated, “[b]ecause it is not evident that [the interrogatory] implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered.” Id. at p. 502. However, an objecting party may be entitled to protection if it can make a showing that answering the interrogatory would reveal the attorney’s “tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.” Ibid.