Coito v. State of California (CA. Supreme Court) (____CCC____):
In this case the California Supreme Court dealt with the following attorney work product issues: (1) is a list of witnesses of whom recorded statements have been taken entitled to the attorney work product privilege, (2) are recorded interviews of a witness conducted by an attorney entitled to the attorney work product privilege, and (3) are recorded interviews of a witness done at the direction of the attorney entitled to the attorney work product privilege.
Holding by Supreme Court:
The Supreme Court ruled that a list of witnesses whose statement has been taken is normally not subject to the attorney work product privilege.
A witness statement taken by the attorney is normally entitled to a qualified work product privilege. At times the statement taken by the attorney can be entitled to an absolute attorney work product privilege if the statement is inextricably intertwined with explicit comments or notes of the attorney stating his or her impressions of the witness, the witness’s statements, or other issues in the case. In such situations, redaction of the attorney’s questions may sometimes be appropriate and sufficient to protect the privileged material. At other times, however, it may not do to simply redact the questions from the record, as the witness’s statements will reveal what questions were asked and, in that case, the statement may be entitled to the absolute attorney work product privilege protection.
A statement taken at the request of the attorney is entitled to a qualified work product privilege.
A statement independently prepared by a witness or taken not by, or at the request of, an attorney does not become protected work product simply upon its transmission to an attorney.
Absolute attorney work product is never discoverable.
Qualified protection is discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.
A statement taken before an attorney has been hired to handle the case, or when the statement is requested not by the attorney but by the employer, administrator, or insurance company, is not entitled to the attorney work product privilege and is discoverable.
Will it be easier for the applicant’s attorney to get copies of witness statements, taken by the defense attorney or at the request of the defense attorney, than attorneys in civil actions? To obtain access to the statements the applicant’s attorney must prove that lack of access to the statement will unfairly prejudice the applicant in preparing his claim or defense or will result in an injustice. In workers compensation cases we have liberal construction of the law, limited applicant attorney fees and potential awards that are lower compared to civil cases. Will those factors, along with the cost of obtaining the statement, be enough for the applicant’s attorney to show he does not have equal access to the statements and will be unfairly prejudiced in preparing his case?