Coito v. Superior Court: Is California’s Work Product Doctrine Under Siege?

January 4th, 2011
By: J. Gregory Dyer, Stephens Friedland LLP

When the decision in Coito v. Superior Court, 182 Cal. App. 4th 758 (2010) was handed down by the Court of Appeal in March 2010, many practitioners were shocked.  Coito held that attorney-recorded witness statements were not protected by the work product “privilege” under CCP § 2018.030.  (Other courts and many practitioners also commonly refer to the protection of attorney work product as the “work product doctrine” rather than the “work product privilege.”)  The California Supreme Court granted review on June 9, 2010 and the case has been fully briefed, but there has been no oral argument.

California’s work product privilege is enshrined at CCP § 2018.030.  It consists of two parts:  (a) an attorney’s impressions, conclusions, opinions, or legal research or theories are not discoverable under any circumstances; and (b) an attorney’s work product may be discoverable if a court determines that denial of the discovery would “unfairly prejudice” the party seeking discovery or an injustice would result by applying the privilege.

The Coito decision did not address the absolute protections afforded to an attorney’s “impressions, conclusions, opinions, legal research or theories” under CCP § 2018.030(a).  Presumably, those protections will remain intact when the California Supreme Court hands down its decision.

In the meantime, attorneys should be cautious when tape recording, video recording, or transcribing witness interviews verbatim.  Such recordings may be discoverable even when gathered during interviews conducted by attorneys.  Coito left open the possibility that extenuating circumstances might permit the party resisting discovery to request an in camera review before being forced to turn over such recorded statements.

An in camera review, however, merely reaffirms the balancing required of a court by CCP 2018.030(b).  Attorney work product is discoverable under the qualified privilege of CCP § 2018.030(b) if a court determines that a party would be unfairly prejudiced or an injustice would result.  The California Supreme Court may simply affirm this balancing test as provided for by statute.  Such a result would not significantly change California’s work product privilege.

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