Morrison Law Journal


The Morrison Law Journal July 2012 Volume VII, Edition 7 Getting Off The Greyhound Bus? California Supreme Court Rules That Audio Recordings of Witness Interviews, Conducted by Investigators Employed By Defendant's Counsel, Are Protected By Work Product Privilege By: Edward F. Morriso n, Jr., Esq. Larry A. Schwartz, Esq.
The California Supreme Court, in the case of Coito v. Superior Court (2012) DAR 8713 (“Coito”), has decided, at least in part, the contentious issue of whether audio recordings of witness interviews are subject to discovery in a civil case. In that regard, the State Supreme Court ruled that audio recordings of witness interviews conducted by investigators employed by a party’s counsel come within the attorney work product privilege. The State Supreme Court further ruled that information sought by Judicial Council Form Interrogatory 12.3 is entitled to qualified work product protection. In California, an attorney's work product is protected by statute under Code of Civil Procedure § 2018.010, et seq. Absolute protection is afforded to writings that reflect "an attorney's impressions, conclusions, opinions, or legal research or theories." [Code of Civil Procedure § 2018.030(a)] All other work product receives qualified protection and such material "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing the party's claim or defense or will result in an injustice." [Code of Civil Procedure § 2018.030(b)] The Coito case concerned the drowning death of 13 year old Jeremy Wilson in the Tuolumne River in Modesto, California. The child’s mother, Debra Coito, filed a Complaint for wrongful death naming several defendants, including the State of California. Apparently, there were six juvenile witnesses to the drowning. On November 12, 2008, after a co defendant (the City of Modesto) had noticed the depositions of five of the six juvenile witnesses, counsel for the State of California sent two investigators, both special agents from the Bureau of Investigation of the Department of Justice, to interview four of the juvenile witnesses. The State's counsel provided the investigators the questions he wanted asked. Each interview was audio recorded and saved on a separate compact disk. 1 On January 27, 2009, co defendant City of Modesto began its deposition of one of the four interviewed juvenile witnesses. The State’s counsel used the content of the witness's recorded interview in questioning the witness at the deposition. Thereafter, the Plaintiff served the State of California with supplemental interrogatories and document requests, including Judicial Council Form Interrogatory number 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The State objected based on the attorney work product privilege. Thereafter, Plaintiff filed a Motion to Compel an answer to Form Interrogatory 12.3 and the production of the recorded interviews. In support of the Motion, the Plaintiff filed declarations from two of the interviewed witnesses asserting that they had not intended their statements to be confidential. The State of California opposed the motion, relying on Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217, which held that recorded witness statements may be entitled to absolute work product protection and that information sought by Form Interrogatory number 12.3 is entitled to qualified work product protection. Following a hearing on the Motion, the Trial Court issued a written order that relied on Nacht & Lewis and denied the Plaintiff's motion, except as to the recording used by the State to examine the witness during the January 27, 2009 deposition. As to that recording, the Trial Court reasoned that the State had waived the work product privilege by using the recorded interview to examine the witness during the deposition in the first place. The Plaintiff then filed a Petition for Writ of Mandate, which the Court of Appeal granted. In a split decision, the Court of Appeal, citing the California Supreme Court decision in Greyhound Corporation v. Superior Court (1961) 56 Cal.2d 355 (“Greyhound”)1, concluded that witness information sought by Form Interrogatory number 12.3 is not entitled as a matter of law to absolute or qualified work product protection. The majority of the Court of Appeal further concluded that, because defendant's attorney had made no showing of entitlement to work product protection in the specific context of that case, the audio recorded interviews were subject to discovery as well. The California Supreme Court then granted review. 1 In Greyhound, the California Supreme Court concluded that statements of independent witnesses to an accident procured by the defendant and handed over to its attorneys were subject to discovery 2 In its opinion, the California Supreme Court, after discussing the history of court rulings on the attorney work product doctrine, including Hickman v. Taylor (1947) 329 U.S. 495, and the legislative history which led up to the current version of Code of Civil Procedure § 2018.010, et seq., concluded that witness statements taken by a party’s counsel or a representative of that counsel come within the attorney work product privilege in California. In that regard, the California Supreme Court ruled: "[i]n light of the origins and development of the work product privilege in California, we conclude that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney's agent at the attorney's behest, constitute work product protected by Section 2018.030." The California Supreme Court then remanded the matter to the Trial Court for consideration of whether absolute privilege applied to all or part of the recorded witness interviews. The Supreme Court further ruled that, if any or all of the interviews were not absolutely protected, the Trial Court was then to consider whether the Plaintiff could make a sufficient showing of unfair prejudice or injustice under Section 2018.030(b) to permit discovery (the Supreme Court did not disturb the Trial Court's conclusion that the State of California waived the work product privilege as to the recording used to examine a witness during the January 27, 2009 deposition). There are two nuances to this portion of the California Supreme Court’s holding in Coito. First, the absolute protection under Code of Civil Procedure § 2018.030(a) may apply if a showing is made that the statement reflects the thoughts or impressions of counsel. Second, even if the absolute protection does not apply, the qualified privilege under Code of Civil Procedure § 2018.030(b) will still apply and the party seeking disclosure will have 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. In addition, the California Supreme Court also considered the question of whether witness lists are discoverable as called for under Form Interrogatory number 12.3. As to that question, the Supreme Court held that information responsive to Form Interrogatory number 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the Supreme Court ruled that the interrogatory usually must be answered but that the responding party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in 3 opposing counsel taking undue advantage of the attorney's industry or efforts of counsel. The Coito decision is certainly significant. Insofar as witness statements, so long as they are attorney driven, the statements will be privileged at some level. Also, as for identity of witnesses, there may be protection under the attorney work product privilege if the responding party can demonstrate that the witness information reflects the thoughts or impressions of counsel. About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com. Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com. Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter. 4

The California Supreme Court, in the case of Coito v. Superior Court (2012) DAR 8713 (“Coito”), has decided, at least in part, the contentious issue of whether audio recordings of witness interviews are subject to discovery in a civil case. In that regard, the State Supreme Court ruled that audio recordings of witness interviews conducted by investigators employed by a party’s counsel come within the attorney work product privilege. The State Supreme Court further ruled that information sought by Judicial Council Form Interrogatory 12.3 is entitled to qualified work product protection.

In California, an attorney's work product is protected by statute under Code of Civil Procedure § 2018.010, et seq. Absolute protection is afforded to writings that reflect "an attorney's impressions, conclusions, opinions, or legal research or theories." [Code of Civil Procedure § 2018.030(a)] All other work product receives qualified protection and such material "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing the party's claim or defense or will result in an injustice." [Code of Civil Procedure § 2018.030(b)]

The Coito case concerned the drowning death of 13 year old Jeremy Wilson in the Tuolumne River in Modesto, California. The child’s mother, Debra Coito, filed a Complaint for wrongful death naming several defendants, including the State of California. Apparently, there were six juvenile witnesses to the drowning. On November 12, 2008, after a co defendant (the City of Modesto) had noticed the depositions of five of the six juvenile witnesses, counsel for the State of California sent two investigators, both special agents from the Bureau of Investigation of the Department of Justice, to interview four of the juvenile witnesses. The State's counsel provided the investigators the questions he wanted asked. Each interview was audio recorded and saved on a separate compact disk.

On January 27, 2009, co defendant City of Modesto began its deposition of one of the four interviewed juvenile witnesses. The State’s counsel used the content of the witness's recorded interview in questioning the witness at the deposition. Thereafter, the Plaintiff served the State of California with supplemental interrogatories and document requests, including Judicial Council Form Interrogatory number 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The State objected based on the attorney work product privilege.

Thereafter, Plaintiff filed a Motion to Compel an answer to Form Interrogatory 12.3 and the production of the recorded interviews. In support of the Motion, the Plaintiff filed declarations from two of the interviewed witnesses asserting that they had not intended their statements to be confidential. The State of California opposed the motion, relying on Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217, which held that recorded witness statements may be entitled to absolute work product protection and that information sought by Form Interrogatory number 12.3 is entitled to qualified work product protection.

Following a hearing on the Motion, the Trial Court issued a written order that relied on Nacht & Lewis and denied the Plaintiff's motion, except as to the recording used by the State to examine the witness during the January 27, 2009 deposition. As to that recording, the Trial Court reasoned that the State had waived the work product privilege by using the recorded interview to examine the witness during the deposition in the first place.

The Plaintiff then filed a Petition for Writ of Mandate, which the Court of Appeal granted. In a split decision, the Court of Appeal, citing the California Supreme Court decision in Greyhound Corporation v. Superior Court (1961) 56 Cal.2d 355 (“Greyhound”)1, concluded that witness information sought by Form Interrogatory number 12.3 is not entitled as a matter of law to absolute or qualified work product protection. The majority of the Court of Appeal further concluded that, because defendant's attorney had made no showing of entitlement to work product protection in the specific context of that case, the audio recorded interviews were subject to discovery as well.

The California Supreme Court then granted review.

1 In Greyhound, the California Supreme Court concluded that statements of independent witnesses to an accident procured by the defendant and handed over to its attorneys were subject to discovery

In its opinion, the California Supreme Court, after discussing the history of court rulings on the attorney work product doctrine, including Hickman v. Taylor (1947) 329 U.S. 495, and the legislative history which led up to the current version of Code of Civil Procedure § 2018.010, et seq., concluded that witness statements taken by a party’s counsel or a representative of that counsel come within the attorney work product privilege in California. In that regard, the California Supreme Court ruled:

The California Supreme Court then remanded the matter to the Trial Court for consideration of whether absolute privilege applied to all or part of the recorded witness interviews. The Supreme Court further ruled that, if any or all of the interviews were not absolutely protected, the Trial Court was then to consider whether the Plaintiff could make a sufficient showing of unfair prejudice or injustice under Section 2018.030(b) to permit discovery (the Supreme Court did not disturb the Trial Court's conclusion that the State of California waived the work product privilege as to the recording used to examine a witness during the January 27, 2009 deposition).

There are two nuances to this portion of the California Supreme Court’s holding in Coito. First, the absolute protection under Code of Civil Procedure § 2018.030(a) may apply if a showing is made that the statement reflects the thoughts or impressions of counsel. Second, even if the absolute protection does not apply, the qualified privilege under Code of Civil Procedure § 2018.030(b) will still apply and the party seeking disclosure will have 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.

In addition, the California Supreme Court also considered the question of whether witness lists are discoverable as called for under Form Interrogatory number 12.3. As to that question, the Supreme Court held that information responsive to Form Interrogatory number 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the Supreme Court ruled that the interrogatory usually must be answered but that the responding party may be entitled to protection if it can make a preliminary or foundational 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 of counsel.

The Coito decision is certainly significant. Insofar as witness statements, so long as they are attorney driven, the statements will be privileged at some level. Also, as for identity of witnesses, there may be protection under the attorney work product privilege if the responding party can demonstrate that the witness information reflects the thoughts or impressions of counsel.

About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at www.morrisonlawgroup.com.

Publication Note: The Morrison Law Group wishes to disseminate this publication to all clients and colleagues of the Firm who wish to receive it. Should any recipient desire to be removed from the distribution list, or wishes to have a colleague added, please contact Jim Van Dusen at The Morrison Law Group at 213 356-5504 or vandusen@morrisonlawgroup.com.

Disclaimer Note: The legal article presented above is intended to provide general information which may be of interest or use to clients and colleagues of The Morrison Law Group and should not be construed as legal advice on any matter.