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California: Discovery of Witness Statements

January 28, 2013 (8 min read)
 By Mark L. Kahn (Associate Chief Judge, Retired)
Arbitrator/Mediator/Attorney - Altman, Lunche & Blitstein
A review of the most recent cases on the subject of discovery of witness statements leads to the conclusion that witness statements taken by the attorney, at the attorney’s direction, or written by a witness and given to the attorney, are discoverable in workers’ compensation proceedings. However, defendants will be able to delay providing the statements until after they take the deposition of the applicant as long as they take the deposition within a reasonable time after receiving notice of the discovery request for the witness statements.

In Coito v. State of California (2012) 54 Cal. 4th 480, the California Supreme Court, in dealing with the issue of work product privilege and the discovery of witness statements, held that: (1) a list of witnesses of whom recorded statements have been taken is not entitled to the attorney work product privilege; (2) recorded interviews of a witness conducted by an attorney is entitled to the attorney work product privilege; and (3) recorded interviews of a witness done at the direction of the attorney are entitled to the attorney work product privilege.

Absolute attorney work product is never discoverable. Qualified protection is discoverable if 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. (Coito at p. 488)
A witness statement taken by the attorney or at the attorney’s behest is normally entitled to a qualified work product privilege. At times the statement taken by the attorney or at the attorney’s behest can be entitled to an absolute attorney work product privilege if the statement is inextricably intertwined with explicit comments or notes of the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. In such situations, redaction of the attorney’s questions may sometimes be appropriate and sufficient to protect the privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness’s statements will reveal what questions were asked and, in that case, the statement may be entitled to the absolute attorney work product privilege protection. (Coito at p. 496)
The party must make a preliminary showing or foundational showing that supports the claim that the statement is entitled to absolute work product privilege. The decision of whether the statement is absolute or qualified work product, of whether it is discoverable, and of whether redaction will allow the discovery of what would otherwise be absolute work product privilege, is accomplished by a Workers’ Compensation Judge reviewing the statements in camera and making a ruling. (Coito at p. 496)
PRACTICE TIP: If defense attorneys want to avoid the issue of an in camera inspection and redaction, they should keep their impressions separate from the witness statement.
A statement independently prepared by a witness or taken not by, or at the request of, an attorney does not become protected work product simply upon its transmission to an attorney. (Coito at p. 494)
A list of the names of the witnesses whose statements have been obtained is normally not entitled to the work product privilege unless the attorney can persuade the court that disclosure would reveal the attorney’s tactics, or impressions for evaluations of the case, or result in opposing counsel taking undue advantage of the attorney’s efforts. (Coito at p. 501)
COMMENTARY: The applicant’s attorney will be able to discovery witness statements in workers’ compensation proceedings based on the rationale of the Coito case and because such statements are most of the time qualified work product. To discover the statements the applicant’s attorney must prove that lack of access to the statement will unfairly prejudice the applicant in preparing his claim or will result in an injustice. Because of lower attorney fees awarded in workers’ compensation as compared to civil cases, and the lower awards in workers’ compensation cases compared to civil actions and the cost of taking witness statements, not allowing applicants’ attorney equal access to the witness statements will unfairly prejudice applicants by impairing their ability to prepare their claim for trial and will result in an injustice.
Defendants will have one advantage, and that is they can delay discovery of the witness statements until after the deposition. This will allow them to get the applicant’s testimony under oath before the applicant can view the witness statements. The applicant will be entitled to discover if the defendants have witness statements and the list of witnesses whose statements have been taken before the deposition as this information is discoverable and is not work product privilege.
The cases on discovery of films are exactly on point and concluded that an applicant has a right to discovery of films but not until after the defendant takes the applicant’s deposition as long as the deposition is taken within a reasonable time after the discovery request. In the case of Downing v. City of Hayward (1989) 16 CWCR 76, the WCAB panel held that the applicant’s attorney has a right to view films if requested timely and properly; however, defendants should be authorized to take the deposition prior to discovery of the films. In the case of Hurst v. Home Depot (1996) 25 CWCR 22, the WCAB panel held that that the applicant’s interests were fully protected if he learns of the films and views the films and has an opportunity to rebut the videotape before trial. In this case the applicant was not prejudiced as long he had ample time to review the films and to gather rebuttal evidence prior to trial.
In the recent panel decision Brumm v. State of California (ADJ 7490993), 2013 Cal. Wrk. Comp. P.D. LEXIS --, the WCJ ruled that the attorney client work product privilege did not preclude disclosure of the witness statements and justice would best be served by disclosing the witness statements but not until after the deposition of the applicant. The outcome of this case is consistent with the cases on discovery of films.
TAKEAWAYS: Witness statements are discoverable in workers’ compensation proceedings, but if defendants schedule the deposition of the applicant within a reasonable time after the discovery request for the witness statements by applicant’s attorney, defendants can delay turning over the statements to the applicant until after the disposition. The defendants must disclose the list of witnesses, if discovery is sought by the applicant’s attorney, prior to the deposition, but as long as they take the deposition within a reasonable time, discovery will be delayed until after the deposition.
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