In Coito v. Superior Court (State), published June 25, 2012, the California Supreme Court resolved a split in authority over whether witness statements taken by an attorney (or an attorney's agent) are entitled to work product protection. It did so by discussing whether recorded witness statements concerning a drowning case, taken by special agents from the Bureau of Investigation of the California Department of Justice were protected work product.
The attorneys for the state provided the agents with questions they wanted the agent to ask the witnesses. The state's attorney used the contents of one witness's recorded interview in deposing that witness.
The Supreme Court concluded that witness statements taken by attorneys or their agents are entitled by law to at least qualified work product protection. It reached this conclusion based on the history of work product protection in California. Treating them as work product prevents one side from benefitting from the other's industry; and encourages attorneys to fully investigate their cases. A particular statement may be entitled to absolute work product protection if the attorney makes a sufficient showing that the statement reflects the attorneys thoughts, impressions, and opinions. The court disapproved contrary lower court language in several cases.
The Supreme Court also resolved a split in authority over whether an interrogatory asking for a list of witnesses whose statements have been taken invades work product privilege. It held that such lists are not automatically deemed work product; but that a showing could be made on a case-by-case basis that the attorney's selection of the witnesses from whom to take statements reflects the attorney's thoughts and impressions and is thus protected work product.
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