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:
- 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
- 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).
- 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.