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Coito v. Superior Court of Stanislaus County

March 4, 2010


ORIGINAL PROCEEDINGS in mandate. William A. Mayhew, Judge. (Super. Ct. No. 624500).

The opinion of the court was delivered by: Dawson, J.



We consider the question whether the statement of a witness, taken in writing or otherwise recorded verbatim, by an attorney or the attorney's representative, is entitled to the protection of the California work-product privilege. We will follow the weight of authority and find such statements not protected and therefore available through discovery. The superior court here followed contrary language from Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214 (Nacht & Lewis). We will grant the requested writ of mandate and direct the superior court to enter an order granting the discovery at issue.


Jeremy Wilson, the 13-year-old son of petitioner Debra Coito, died in a drowning incident in the Tuolumne River in Modesto, California, on March 9, 2007. Petitioner filed her complaint for wrongful death thereafter. She named various defendants, including the State of California. The Department of Water Resources is the agency defending for the state, represented by the Attorney General of California. The action is currently before this court on a petition for writ of mandate filed by petitioner. The state is real party in interest.

At the time of the drowning, six other juveniles were present at the site and witnessed what occurred. Allegations have been made of criminal conduct by all of the juveniles, including JeremyWilson, immediately preceding the drowning. On November 12, 2008, after co-defendant City of Modesto had noticed the depositions of five of the six juvenile witnesses, counsel for the state sent two investigators, both special agents from the California Department of Justice, Bureau of Investigation, to interview and take recorded statements from four of the juveniles.*fn1 Counsel for the state had, according to a declaration filed below in this matter, "provided the investigator with questions [he] wanted answered." The juveniles' statements are each saved on a separate compact disk (CD). So is a memo prepared for the attorney for the state by one of the investigators, after conclusion of the interviews.

On January 27, 2009, the City of Modesto's deposition of one of the four interviewed witnesses commenced. Counsel for the state used the content of the witness's recorded statement to examine him at the deposition.

On February 5, 2009, petitioner served the state with supplemental interrogatories and document demands. (Code Civ. Proc.,*fn2 §§ 2030.070, 2031.050.) The interrogatories included Judicial Council form interrogatory No. 12.3, by which petitioner sought the names of and information about witnesses from whom written or recorded statements had been obtained.*fn3 Through the demand for production of documents, petitioner sought discovery of the four recorded witness statements. Petitioner did not seek discovery of the memorandum concerning the witness interviews, prepared by one of the investigators for counsel for the state. The state objected to the requested discovery, based on the attorney work-product privilege. (§ 2018.030.) After meeting and conferring with counsel for the state, counsel for petitioner filed a motion to compel answer to interrogatory No. 12.3 and production of the recorded witness statements. (§§ 2030.300, 2031.310.) In support of the motion to compel, petitioner filed declarations from two of the interviewed witnesses in which both declared, among other things, that they did not intend that their recorded statements be confidential. The state filed opposition to the motion to compel, relying primarily on the opinion in Nacht & Lewis.

After a hearing on April 10, 2009, the superior court issued a written order denying petitioner's motion to compel. The court relied on Nacht & Lewis for the proposition that the list of potential witnesses from whom written or recorded statements had been obtained, sought by way of form interrogatory No. 12.3, would constitute qualified attorney work product, and the recorded witness statements would be entitled to absolute work-product protection.*fn4 The court did order production of the statement of the witness whose deposition had been taken, on the basis that the state had waived work-product protection by using the content of the statement to examine the witness at his deposition.

Petitioner filed her application for writ of mandate on May 26, 2009. We issued an order to show cause, directed the state to file a response to the petition, and heard oral argument.*fn5 We will grant the petition.


I. The Work-Product Privilege

In California, the attorney work-product privilege*fn6 is codified in part 4, title 4, chapter 4 of the Civil Discovery Act contained in the Code of Civil Procedure. (§§ 2016.010 et seq. [Civil Discovery Act], 2018.010 et seq. [Attorney Work Product].) Section 2018.030 divides attorney work product into two categories-absolute and qualified work product. Subdivision (a) of section 2018.030 provides absolute protection from discovery of any "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories ...." Such writings are "not discoverable under any circumstances." (Ibid.) The term "writing" is broadly defined to include any form of recorded information, including audio recordings. (§ 2016.020, subd. (c); see Evid. Code, § 250.) A classic example of a writing that is protected by the absolute privilege is a memorandum written by an attorney, after taking a statement from a potential witness, summarizing the attorney's impressions and conclusions. (See, e.g., People v. Boehm (1969) 270 Cal.App.2d 13, 21.)*fn7

Subdivision (b) of section 2018.030 is a catch-all for attorney work product that does not fall within subdivision (a). It provides qualified protection: such work product "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense ...."

Neither subdivision (b) nor any other provision of the Civil Discovery Act provides a description or a definition of what is and what is not qualified work product. Accordingly, the courts have had to proceed on a case-by-case basis. In doing so, the courts have focused on the distinction between "derivative" or "interpretative" material on the one hand, and "non-derivative" or "evidentiary" material on the other. (See, e.g., Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10- 11 (Mack); Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68-69; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647.) Generally speaking, work product protection extends only to "derivative" material, which is material "created by or derived from an attorney's work on behalf of a client that reflects the attorney's evaluation or interpretation of the law or the facts involved." (2 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 8:235, p. 8C-69.) In contrast, "non-derivative" material is that which is "only evidentiary in character." (Ibid.) As such it is "not protected even if a lot of attorney `work' may have gone into locating and identifying [it]." (Ibid., citing Mack, supra, at p. 10.) Examples of derivative materials include "diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial." (Mack, at p. 10.) Examples of non-derivative or evidentiary materials include the identity and location of physical evidence (ibid.), and the identity and location of witnesses. (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 73.) A guiding principle in this analysis is that "[i]nformation regarding events provable at trial, or the identity and location of physical evidence, cannot be brought within the work product privilege simply by transmitting it to the attorney." (Mack, supra, at p. 10.)

Section 2018.020 states the policy underlying California's work- product privilege:

"It is the policy of the state to do both of the following:

"(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.

"(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts."

The courts must balance these purposes with those underlying the larger Civil Discovery Act (§ 2016.010 et seq.), which include:

"(1) [giving] greater assistance to the parties in ascertaining the truth and in checking and preventing perjury;

(2) [providing] an effective means of detecting and exposing false, fraudulent and sham claims and defenses; (3) [making] available, in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; (4) [educating] the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements; (5) [expediting] litigation; (6) [safeguarding] against surprise; (7) [preventing] delay; (8) [simplifying] and narrow[ing] the issues; and, (9) [expediting] and facilitat[ing] both preparation and trial." (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376 (Greyhound).)

In order to accomplish these various purposes, the Civil Discovery Act "must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well-established causes for denial.... `Only strong public policies weigh against disclosure.'" (Greyhound, supra, 56 Cal.2d at p. 377, quoting Chronicle Publishing Co. v. Superior Court (1960) 54 Cal.2d 548, 572.)

II. Work Product and Witness Statements

The courts have several times, and in differing contexts, addressed the question whether witness statements are subject to discovery. They have clearly held that statements prepared by a witness and then turned over to an attorney are not the attorney's work product. (See, e.g., Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119.) A more difficult problem is presented where the witness's statement has been taken by the attorney or by the attorney's representative.*fn8 In such situations, it can surely be said that the witness statement is in part the product of the attorney's work. That is not to say, however, that the witness statement is entitled to work-product protection. In fact, the courts of California have not so held.*fn9

In Greyhound, supra, 56 Cal.2d 355, the trial court granted the plaintiff's request for production of statements taken from independent, percipient witnesses to an accident that was the subject of the litigation. The statements had been taken by adjusters and investigators for use by the defendant's attorneys. The defendant asserted error on the basis, among others, that the statements were attorney work product. (Id. at pp. 386-387.) The court stated that "the work product privilege does not exist in this state." (Id. at p. 401.)*fn10 But it also quoted extensively and with apparent approval from the United States Supreme Court's opinion in Hickman v. Taylor (1947) 329 U.S. 495, where the high court distinguished, under federal discovery rules, between a request for production of an attorney's "written memoranda of impressions received from oral statements and conversations had with independent witnesses" and a request for discovery of written statements taken from independent*fn11 witnesses. (Greyhound, at p. 400, citing Hickman, at p. 511.) The Greyhound court upheld the trial court's order that the defendant provide discovery of the witness statements. (Greyhound, at p. 401.)*fn12

Subsequent to its opinion in Greyhound, the California Supreme Court again recognized that statements taken from independent witnesses are subject to discovery. In Beesley v. Superior Court (1962) 58 Cal.2d 205, the court reversed the trial court's denial of discovery, finding that the requisite "good cause" for discovery had been shown.*fn13 In Christy v. Superior Court (1967) 252 Cal.App.2d 69, 71-72, this court did the same. No argument was made in either case that witness statements were attorney work product.

In subsequent cases, the question whether witness statements taken by attorneys or their representatives constitute work product has been addressed more directly.

In Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, the appellants argued that "written or recorded statements of witnesses made to an attorney" were protected by the work-product privilege codified in the statutory predecessor to current section 2018.030. (Kadelbach, supra, at p. 822.) The court rejected the contention on the basis that witness statements, even those taken by an attorney, are not derivative but are evidentiary in nature. (Ibid.; see also Fellows v. Superior Court, supra, 108 Cal.App.3d at p. 69 ["`Major categories of non-derivative evidentiary material excluded from the concept of an attorney's work product include ... written or recorded statements of prospective witnesses'"].)

In People v. Williams (1979) 93 Cal.App.3d 40, the appellate court reviewed certain notes made by the prosecutor after interviewing a victim witness.*fn14 The appellate court found that the notes were "simply the prosecutor's summary of statements of ... the victim," and it "is well-settled that there is no attorney's work-product privilege for statements of witnesses since such statements constitute material of a non-derivative or noninterpretative nature. [Citation.]" (Id. at pp. 63-64.)

Notes made by the interviewing attorney or attorney's representative usually are treated as work product, entitled to absolute protection, because they reflect the impressions, conclusions or opinions of the interviewer. (See, e.g., Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d at p. 648.) In Rodriguez, the sought-after discovery was "an amalgam of the recorded statements of a witness and comments" made by the person who interviewed the witness for the attorney. (Id. at p. 647.) The court held the amalgam should be protected by the absolute work-product privilege, but it did so only after noting that the witness statements would not be considered work product were they not inextricably "intertwined" with the portion of the amalgam that was ...

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