Where a witness's statement has been obtained through attorney-directed interviews, that witness statement is protected by attorney-client work-product privilege. The witness statements would not exist but for the attorney's initiative, decision, and effort to obtain it.
Plaintiff's son drowned, and six children witnessed the drowning. Plaintiff sued several defendants for wrongful death. Defendants' investigators interviewed four of the witnesses. Investigators used a list of questions prepared by defendants' attorneys, and recorded each interview. During discovery, plaintiff served an interrogatory on defendants requesting the names of everyone who had provided written or recorded statements. Plaintiff also requested the audio recordings of the interviews. Defendants objected to the requests, citing attorney-client work-product privilege. Plaintiff filed a motion to compel responses to the requests. Without reviewing the recordings, the trial court found the work-product applied and denied the motion. Plaintiff appealed, and the Court of Appeal reversed, holding that the work-product privilege did not apply to the list recordings. Defendant petitioned the CA Supreme Court for review.
Whether the attorney work-product privilege applied to the list and audio interviews?
Yes, the attorney work-product privilege applied to the list and audio interviews.
In reversing the appellate court's decision, the CA Supreme Court held that witness statements that are procured by an attorney are not automatically entitled to the work-product privilege, but this protection required a showing that disclosure would reveal an attorney's impressions, conclusions, opinions, legal research, or theories. Though the interrogatory did not seem to violate the privilege, a showing that it might implicate the privilege is possible.