Discovery of Investigation Materials
There is a saying that there are three sides to every story, “Yours, mine and then the truth.” When a claim for workers’ compensation comes in, there is always a story that accompanies it. Sometimes the story, or the facts learned through investigation, suggest that the claimant is not telling the whole story. This often results in an investigation being launched. An investigator may be sent out to take sub rosa video, interview potential witnesses and/or take witness statements. Sometimes the interviews and/or statements taken give you information that you do not necessarily want to share with the opposing party, as they may give another side to the story that is beneficial to your defense. However, even though it is your investigation and you paid for the investigator, the decision in Coito v. Superior Court, 54 Cal.4th 480, may require that you hand over the information you have obtained unless you take certain precautions.
In Coito the court specifically considered recordings of witness interviews taken by investigators employed by counsel. The Court held that “recorded witness statements are entitled as a matter of law to at least qualified work product protection.” It further held that the witness statements may be entitled to absolute protection if the party seeking protection can show “disclosure would reveal its ‘attorney’s impressions, conclusions, opinions, or legal research or theories.’” If disclosure would not reveal an attorney’s impressions, conclusions, opinions, or legal research or theories, the interviews and/or statements may have to be provided to the opposing party if they can show that “denial of discovery will unfairly prejudice [her] in preparing [her] claim…or it will result in an injustice.”
The Court specifically states that “witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work product protected by section 2018.030.” In order to raise the attorney work product privilege and effectively protect witness statements, an attorney needs to be involved in the process.
So what does this mean? If there appears to be another side to the story that needs to be explored through investigation, involve an attorney. If an investigator is going to conduct witness interviews, the investigator should speak to the attorney first to discuss the questions that should be asked. Involving the attorney prior to an investigator going out and conducting interviews will at least allow for the argument that the interviews are entitled to the attorney work product privilege. If you want to have an assurance that the statements are protected, have the attorney themselves conduct the interview. Based on the decision in Coito a court is not likely to hand over the attorney’s interviews of witnesses to the other side because doing so will likely reveal the “attorney’s impressions, conclusions, opinions, or legal research or theories.”