Day on Torts
The March 8, 2010 edition of the Daily Recorder reports that a divided California appellate court has ruled that witness statements recorded or taken in writing by attorneys or their representatives aren’t privileged work product and, therefore, are open to discovery. The dissenter ruled that the statements were qualified work product, which means that they are undiscoverable unless a court determines that denial of discovery would unduly prejudice the opposing party.
The case is Coito v. Superior Court (State of California) , 10 C.D.O.S. 2697 ( 5th Dis. Cal. Ct. App. March 4, 2010). Here is the opinion.
Here is a nice statement of the holding taken directly from the opinion:
We agree with petitioner‘s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness‘s recollection, impeach the witness‘s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)―The purpose of the [work-product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary‘s efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.‖ (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)For those reasons, we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product.