Coito v. Superior Court: The California Supreme Court Reaffirms California’s Work Product Doctrine

June 27th, 2012
By: J. Gregory Dyer, Stephens Friedland LLP

California’s civil litigators drew a collective sigh of relief when the California Supreme Court issued its decision this past Monday in Coito v. Superior Court, __ P.3d ____, 2012 WL 2369186 (Cal. June 25, 2012).  The California Supreme Court reversed and remanded an appellate court decision in the case that had held that attorney-recorded witness statements were not protected by the work product privilege under CCP section 2018.030.

The California Supreme Court’s decision on Monday reaffirmed that qualified work product protection applies to all witness statements obtained by an interview conducted by an attorney.  The Court also held that absolute work product protection for witness statements obtained by an attorney during an interview was to be decided on a case by case basis.  Absolute work product protection will still apply where disclosure of the witness statement would “reveal [the attorney’s] ‘impressions, conclusions, opinions, or legal research or theories.’”  Id. at *9.

The appellate court’s 2010 decision required attorneys to be cautious when tape recording, video recording, or transcribing witness interviews verbatim.  The appellate court had shrugged off concerns that disclosure of such materials might reveal an attorney’s “impressions, conclusions, opinions, or legal research or theories” (and therefore contravene the work product “privilege” as stated in CCP section 2018.030) when it wrote that: “We are confident, however, that competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so.”  Coito v. Superior Court, 182 Cal. App. 4th 758 (2010).

Rather than break new ground, the California Supreme Court has reaffirmed California’s work product doctrine as it was envisioned by the Legislature and as it had been traditionally understood.  California’s civil litigators can breathe easier knowing that the California Supreme Court has reaffirmed at least a qualified work product protection for the witness statements that they work hard to obtain.

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