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Coito v. Superior Court

Supreme Court of California

June 25, 2012, Filed



 [***610]  [**863]  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 Civ. Proc.) 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  [*486]  of these items, invoking the work product privilege. The trial court sustained  [****3] 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  [***611]  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  [****4] 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).

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54 Cal. 4th 480 *; 278 P.3d 860 **; 142 Cal. Rptr. 3d 607 ***; 2012 Cal. LEXIS 5823 ****; 2012 WL 2369186


Subsequent History: Reported at Debra v. S.C. Cal., 2012 Cal. LEXIS 6395 (Cal., June 25, 2012)

Prior History:  [****1] Superior Court of Stanislaus County, No. 624500, William A. Mayhew, Judge. Court of Appeal, Fifth Appellate District No. F057690.

Coito v. Superior Court, 182 Cal. App. 4th 758, 106 Cal. Rptr. 3d 342, 2010 Cal. App. LEXIS 292 (Cal. App. 5th Dist., 2010)


discovery, work product, witness statement, interview, witnesses, work product privilege, work product protection, preparation, cases, form interrogatory, recorded, investigate, impressions, recorded statement, matter of law, trial court, disclosure, absolute protection, legal research, discoverable, injustice, questions, attorney-client, reflects, privacy, courts, absolute privilege, written statement, opposing counsel, defense counsel

Civil Procedure, Appeals, Standards of Review, De Novo Review, Privileged Communications, Work Product Doctrine, General Overview, Scope of Protection, Opinion Work Product, Fact Work Product