Court: Superior County: Stanislaus Judge: William A. Mayhew Ct.App. 5 F057690 Super. Ct. No. 624500
The opinion of the court was delivered by: Liu, J.
In California, an attorney's work product is protected by statute. (Code Civ. Proc., § 2018.010 et seq.; all further unlabeled statutory references are to the Code of Civil Procedure.) Absolute protection is afforded to writings that reflect "an attorney's impressions, conclusions, opinions, or legal research or theories." (§ 2018.030, subd. (a).) All other work product receives qualified protection; such material "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 or will result in an injustice." (§ 2018.030, subd. (b).)
In this case, we decide what work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant's counsel, and second, information concerning the identity of witnesses from whom defendant's counsel has obtained statements. Defendant objected to plaintiff's requests for discovery of these items, invoking the work product privilege. The trial court sustained the objection, concluding as a matter of law that the recorded witness interviews were entitled to absolute work product protection and that the other information sought was work product entitled to qualified protection. A divided Court of Appeal reversed, concluding that work product protection does not apply to any of the disputed items. The Court of Appeal issued a writ of mandate directing the trial court to grant the motion to compel discovery.
We conclude that the Court of Appeal erred. In light of the legislatively declared policy and the legislative history of the work product privilege, we hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its "attorney's impressions, conclusions, opinions, or legal research or theories." (§ 2018.030, subd. (a).) If not, then the items may be subject to discovery if plaintiff can show that "denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice." (§ 2018.030, subd. (b).)
As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).
We reverse the judgment of the Court of Appeal and remand the matter for further proceedings, consistent with our opinion, to determine whether the disputed materials should be produced.
On March 9, 2007, 13-year-old Jeremy Wilson drowned in the Tuolumne River in Modesto, California. His mother, Debra Coito, filed a complaint for wrongful death naming several defendants, including the State of California. The Department of Water Resources (DWR) is the agency defending the action for the state, represented by the Attorney General.
Six other juveniles witnessed what happened. There were allegations that all of the juveniles, including the decedent, were engaged in criminal conduct immediately before 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 Bureau of Investigation of the Department of Justice, to interview four of the juveniles. The state's counsel provided the investigators with questions he wanted asked. Each interview was audio-recorded and saved on a separate compact disc.
On January 27, 2009, the City of Modesto began its deposition of one of the four interviewed witnesses. The state's counsel used the content of the witness's recorded interview in questioning the witness at the deposition.
On February 5, 2009, plaintiff served the state with supplemental interrogatories and document demands. The interrogatories included Judicial Council form interrogatory No. 12.3, which sought the names, addresses, and telephone numbers of individuals from whom written or recorded statements had been obtained. The document demands sought production of the audio recordings of the four witness interviews. The state objected to the requested discovery based on the work product privilege.
Plaintiff filed a motion to compel an answer to form interrogatory No. 12.3 and the production of the recorded interviews. In support of the motion, plaintiff filed declarations from two of the interviewed witnesses asserting that they had not intended their statements to be confidential. The state opposed the motion, relying primarily on Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217(Nacht & Lewis), which held that recorded witness statements are entitled to absolute work product protection and that information sought by form interrogatory No. 12.3 is entitled to qualified work product protection.
After an April 10, 2009 hearing, and without having reviewed the audio recordings, the trial court issued a written order that relied on Nacht & Lewis in denying 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 court reasoned that the state had waived the work product privilege by using the interview to examine the witness during the deposition.
Plaintiff petitioned for a writ of mandate that the Court of Appeal granted. The majority, relying on Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 (Greyhound) and expressly declining to follow Nacht & Lewis, concluded that witness interviews and the information sought by form interrogatory No. 12.3 are not entitled as a matter of law to absolute or qualified work product protection. Because defendant's attorney made no showing of entitlement to work product protection in the specific context of this case, the Court of Appeal directed the trial court to compel discovery. Justice Kane wrote a concurring and dissenting opinion. While agreeing that the trial court's order denying discovery should be vacated, he concluded that the recorded interviews were entitled as a matter of law to at least qualified work product protection, whereas the information sought by form interrogatory No. 12.3 must be produced unless the objecting party has made an adequate showing to support a claim of qualified privilege.
We granted review. As with all matters of statutory construction, our review of the Court of Appeal's interpretation of the work product statute is de novo. (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 387.)
California's civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection to any "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." (§ 2018.030, subd. (a).) Such a writing "is not discoverable under any circumstances." (Ibid.) The term "writing" includes any form of recorded information, including audio recordings. (§ 2016.020, subd. (c) [adopting the definition set forth in Evidence Code section 250].) Section 2018.030, subdivision (b) provides qualified protection for all other work product. Such material "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 or will result in an injustice." (§ 2018.030, subd. (b).) Here, we address the work product privilege in the civil context only, as criminal discovery is regulated by a different statute. (Pen. Code, § 1054 et seq.)
The language of section 2018.030 does not otherwise define or describe "work product." Courts have resolved whether particular materials constitute work product on a case-by-case basis (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 71), although they have sometimes taken different approaches. Some courts have attempted to answer the question by distinguishing between "derivative" or "non-derivative" material, or between "interpretative" and "evidentiary" material. (E.g., Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68-69 (Fellows); Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647 (Rodriguez); Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10-11 (Mack).) These cases have concluded that only derivative or interpretive material -- material created by or derived from an attorney's work reflecting the attorney's evaluation of the law or facts -- constitutes work product. Examples of such material 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.) Non-derivative material -- material that is only evidentiary in nature -- does not constitute work product. Examples of such material include the identity and location of physical evidence or witnesses. (Ibid.; City of Long Beach, at p. 73.)
Other courts, instead of distinguishing between derivative and non-derivative material, have determined the scope of protected work product by relying primarily upon the policies underlying the work product statute and its legislative history. (E.g., Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 130-133, 135 (Dowden).) Because those policies and the legislative history are instructive in resolving the instant case, we begin by reviewing the origins and development of California's work product privilege.
The idea that an attorney's work product should receive protection from discovery was first recognized by the United States Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495 (Hickman). There, the defendant's counsel interviewed and took statements from the surviving crewmembers of a tugboat accident. (Id. at p. 498.) The plaintiff sought the production of any written or oral statements taken from the crewmembers. (Id. at pp. 498-499.) After concluding that the statements were not covered by the attorney-client privilege (id. at p. 508), the court nonetheless affirmed the denial of the plaintiff's request. The court explained that the plaintiff's request was "simply an attempt, without purported necessity or ...