Metropolitan News-Enterprise


Friday,  March 5, 2010


Page 1


Court: Witness Statements Taken By Counsel Not Work Product


By SHERRI M. OKAMOTO, Staff Writer


The Fifth District Court of Appeal yesterday ruled that written and recorded witness statements taken by counsel are not attorney work product.

A divided panel granted Debra Coito’s request for a writ of mandate directing Stanislaus Superior Court Judge William A. Mayhew to enter an order granting discovery of four recorded witness statements regarding the 2007 death of Coito’s 13-year old son.

Coito’s son and six other juveniles were allegedly engaged in criminal conduct immediately preceding his drowning in the Tuolumne River in Modesto.

After Coito filed a wrongful death action against the city, state and various other defendants, the city sent investigators from the California Department of Justice to take recorded statements from four of the witnesses.

Shortly thereafter, Coito served the state with supplemental interrogatories, including Judicial Council form interrogatory No. 12.3, by which Coito sought the names of witnesses from whom written or recorded statements had been obtained. She also sought discovery of the recorded witness statements.

When the state objected, Coito filed a motion to compel an answer to interrogatory No. 12.3 and production of the recorded witness statements.

Motion to Compel

Mayhew denied the motion, citing Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214 for the proposition that the recorded witness statements were entitled to absolute work-product protection and that the list of potential witnesses constituted qualified attorney work product.

Writing for the appellate court, Jutice Betty L. Dawson opined that the Nacht & Lewis opinion was “a cursory one” lacking in analysis and “fail[ing] entirely to acknowledge the long line of contrary precedent” provided by Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, Beesley v. Superior Court (1962) 58 Cal.2d 205, Christy v. Superior Court (1967) 252 Cal.App.2d 69, and Kadelbach v. Amaral (1973) 31 Cal.App.3d 814.

These decisions, she explained “addressed the question whether witness statements are subject to discovery” and “clearly held that statements prepared by a witness and then turned over to an attorney are not the attorney’s work product.”

She characterized witness statements as “classic evidentiary material” since they can be used at trial to refresh a witness’s recollection, impeach a witness’s testimony, or rehabilitate a witness after cross-examination

‘Impacts Not Justified’

If such statements are not subject to discovery, Dawson reasoned that “the party denied access to them will have had no opportunity to prepare for their use” and such “impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry.”

For those reasons, the justice concluded that 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.

As such statements are not protected work-product, she said a list of witnesses from whom statements have been obtained would similarly not be shielded from discovery.

Dawson also rejected the suggestion that witness statements taken by counsel could be subject to qualified work-product protection since an attorney’s choice of which witnesses to interview, and the questions asked during the course of an interview, might reflect counsel’s impressions, conclusions, or theories about the case.

Although she acknowledged that a lawyer’s thoughts about a case could be revealed by the manner in which that attorney conducts a witness interview, Dawson said “competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so.”

She also emphasized that nothing in the decision would prevent an attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product.

Justice Bert Levy joined Dawson’s opinion but Justice Stephen Kane only concurred in part.

Kane agreed that the per se rule of absolute protection in Nacht & Lewis “goes too far,” but contended that attorney-recorded witness statements could be considered qualified work product and called on the Supreme Court to clarify the scope of the work-product doctrine.

But in order for a valid objection based on qualified work product to be made, Kane insisted, an affirmative showing must be made by the objecting party that disclosure would actually reveal a significant portion of the attorney’s tactics or evaluation of the case.

The case is Coito v. Superior Court (State of California), 10 S.O.S. 1123.


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