No More Absolute Protection Of Witness Statements Taken By Attorneys

By Nancy N. Lubrano

March 4, 2010

 In Coito v. Superior Court, California’s 5^th Appellate District held that witness statements taken by an attorney (or an attorney’s representative) do not constitute attorney work product. Although, the court held, that witness statements taken by an attorney are "in part" attorney work product, they are not afforded absolute protection under the doctrine. Rather, the 5^th District held that witness statements are "classic" evidentiary material admissible at trial. The court reasoned that withholding witness statements during discovery creates an unfair advantage and hinders the opposing party’s opportunity to fully prepare for trial. The Court further reasoned that because such statements are not work product, neither is a list of witnesses from whom statements have been obtained.

The 5^th District’s ruling completely contradicted an earlier ruling by the 3^rd District and created a split in the California Court of Appeal.  Prior to Coito, attorneys relied upon the 3^rd District’s 1996 holding in Nacht & Lewis v. Superior Court which recognized absolute protection of attorney witness interview notes and recorded statements, as well as lists of potential witnesses who were interviewed, under the doctrine.

The Supreme Court may need to resolve the split. In the mean time, attorney notes that reflect impressions, conclusions, or opinions regarding witness interviews are still protected under the doctrine. Indeed, the Discovery Act provides absolute protection from discovery of any "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories" and such writings are "not discoverable under any circumstances."