In a March 4, 2010 published opinion by California's Fifth Appellate Court District, plaintiffs in a wrongful death case were granted discovery of witness statements taken by investigators employed by Defendant State of California, who were acting on the direction of defense counsel.
The defense attorneys directed the investigators to interview specified witnesses, and ask them specific questions. The witness interviews were recorded by the investigators, and stored on a CD. The investigator also prepared a written memorandum to defense counsel regarding the witness interviews. Following the deposition of the witnesses from whom the statements had been taken, plaintiffs requested discovery of the witness statement recordings, but did not ask for the investigator's memorandum. Defense counsel objected, and the trial court found that the witness statements were protected under the work product privilege citing a 1996 appellate court case. The Court of Appeals reversed and ordered the release of the recordings to Plaintiff.
Although this was a civil action, there was also an allegation of criminal activity by the witnesses. The investigators who took the recorded statements were special agents from the California Department of Justice, Bureau of Investigation, who carried badges and guns. The special agents did not explain to the witnesses that their statements were being taken in a civil action, not a criminal matter. Nevertheless, two of the five witnesses interviewed filed declarations in the discovery dispute indicating that they did not intend that their recorded statements be confidential.
Following a long line of cases beginning with Greyhound v. Superior Court (1961) the court explained the difference between absolute and qualified work product privileges. The overriding public policy for discovery is explained as giving greater assistance to parties in ascertaining the truth and in checking and preventing perjury; providing an effective means of detecting and exposing faults, fraudulent and sham claims and defenses; making available, in a simple, convenient and inexpensive way, facts which would otherwise could not be proved except with great difficulty; educating the parties in advance of trial as to the real value of their claims and defenses thereby encouraging settlements; expediting litigation; guarding against surprise; preventing delays; simplifying and narrowing the issues; and expediting and facilitating both preparation and trial.
At the same time, the attorney work product privilege protects any writing that reflects an attorney's impressions, conclusions, opinions, research or theories from discovery (CCP §2018.030). Public policy further discourages attorneys from taking undue advantage of their adversaries industry and efforts (CCP §2018.020).
The courts are therefore tasked with balancing those purposes with the larger Civil Discovery Act.
The statement of a witness, taken in writing, or otherwise recorded verbatim, by an attorney or the attorney's representative, is not protected by California's attorney work product privilege.
In workers' compensation law, we have a long string of cases going back to Hardesty v. McCord (1976) 41 CCC 111, which holds that witness statements are discoverable, again citing back further to the Greyhound civil case mentioned above.
The California Court of Appeal has underscored the general principle of encouraging broad discovery by mandating disclosure of witness statements which are taken by or at the request of attorneys. The attorney work product privilege applies to the attorney's thoughts and impressions regarding the witness, but not the statements themselves.
© Copyright 2010 by Goldman, Magdalin & Krikes, LLP. All rights reserved. Reprinted with permission.