Jul24

California Supreme Court to Resolve Dispute Over Discoverability of Witness Statements

Posted on July 24, 2010 by Jeff Huron

Last month the California Supreme Court granted review in Coito v. Superior Court (2010) 182 Cal.App.4th 758.

In a 2-1 decision, the Fifth District Court of Appeal held in Coito that witness statements prepared or recorded by an attorney or his agent are not attorney work product and thus discoverable. The Coito majority rejected the contrary holding of the Third District Court of Appeal in Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214 that recorded witness statements taken by counsel are absolute work product because they would reveal counsel's impressions, conclusions, and opinions and thus are not discoverable.

A clear conflict now exists:  on the one hand, attorney-prepared witness statements are always discoverable; and on the other hand, they are never discoverable.

I believe the Supreme Court will adopt a middle-of-the-road solution along the lines proposed by Justice Stephen Kane in his persuasive concurring and dissenting opinion in Coito. Justice Kane's proposal for resolving discovery disputes over attorney-prepared or recorded witness statements involves the following three principles:

  1. Attorney-prepared witness statements are not per se absolute attorney work product. Rather, the absolute privilege of work product applies only to an attorney's "impressions, conclusions, opinions or legal research or theories" and matters inextricably intertwined with them
  2. Witness statements prepared or recorded by an attorney or his agent constitute qualified attorney work product and are discoverable subject to a showing of need pursuant to Code of Civil Procedure section 2018.030(b).
  3. A party should be required to respond to form interrogatory no. 12.3 unless he sets forth foundational facts that support the assertion of the qualified work product privilege.

Stay tuned. Help is on the way. In the meantime, trial courts will have to continue struggling with the competing decisions of Coito and Nacht & Lewis Architects.

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Jul20

Lis Pendens

Posted on July 20, 2010 by Jeff Huron

The volume of real estate litigation has increased dramatically because of the depressed economy.  In times like these, it is more important than ever for real estate attorneys to be familiar with recent changes in lis pendens law. For an in-depth discussion of recent changes in California lis pendens law, you should read Lis Pendens.

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Jul17

Spoliation as Evidence of Guilt

Posted on July 17, 2010 by Jeff Huron

In determining what inferences to draw from the evidence against a party, the jury is permitted to consider a party's willful suppression of evidence. Evid. Code Section 413. In Thor v. Boska (2nd Dist. 1974) 38 Cal.App.3d 558, a doctor, who was sued for malpractice, failed to produce his original charts. His explanation was that, after copying the records verbatim to make them more legible, he must have thrown away the originals. The fact that "the defendant was unable to produce his original clinical record concerning his treatment of the plaintiff after he had been charged with malpractice, created a strong inference of consciousness of guilt on his part."

Today, it is increasingly more common for parties to suppress harmful evidence, such as email. If they do, their conduct is admissible at trial. We had a case where the chief executive officer removed back-up tapes of electronic data from the company's safe.  Neither the officer nor the company produced the tapes during discovery. At trial, the officer's removal of the tapes was powerful evidence that helped convince the jury to find fraud and award punitive damages.

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