Recent Developments in Work Product Doctrine: Coito
In a recent case decided by the California Supreme Court, the issue of whether attorney work product protection applied to (1) recordings of witness interviews conducted by investigators employed by defense counsel and (2) the identity of witnesses from whom defense counsel had obtained statements.
With regard to the witness statements, the Supreme Court justices ruled they may be entitled to an absolute protection if the party holding the statements can show that disclosure would reveal its attorney’s impressions, conclusions, opinions or legal research or theories. If not, then the information in the statements fall under a qualified privilege and subject to disclosure only if the demanding party can demonstrate that a denial of discovery will unfairly prejudice that party in preparing the case or will result in injustice.
As to the list of witness names who the attorney sought to interview, the court held that information is not entitled to automatic protection. In order to invoke the privilege, the party must persuade the trial court that disclosure of witness identities would “reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking unfair advantage of the attorney’s industry or efforts (qualified privilege).”
The case requires the trial court to conduct an in camera inspection of the materials to determine whether there is an absolute, qualified or other privilege protection over the items.
This is a very recent case and it will be interesting to see how the Workers’ Compensation Judges (WCJ) handle this Supreme Court authority in a forum known for promoting free exchange of information and discovery.
The Coito case tightens the requirement for disclosure and affords protections over an attorney’s work efforts and impressions of a case. It is for the trial court to decide whether disclosure of the information will reveal those thoughts and impressions or allow one party to take unfair advantage over the efforts of the other. It is hard to envision a WCJ holding court in every instance to determine the nature of protection on requested documents and information. Nevertheless, this is the Supreme Court’s most recent interpretation of an age-old doctrine. Despite the seeming distaste for collateral proceedings displayed by several WCJ’s, it looks like the process is outlined and there does not appear to be an alternative where a party declines to produce witness identities and statements.