February 2013 | Earn one hour of MCLE Credit in General
Discoverability of Witness Interviews: To What Extent Do the Work Product Doctrine and/or the Attorney-Client Privilege Apply?
Witness interviews are important investigative tools for litigators and other attorneys. Attorneys may interview witnesses to an accident, corporate employees as part of an investigation, or co-defendants who are part of a multi-party lawsuit; the list goes on. Lawyers may conduct the interviews themselves or use non-lawyer personnel such as investigators to assist. Counsel may record the interview, take notes, draft a summary, or report in an email the information the witness provided. The attorney-client privilege and/or attorney work product doctrine provide varying levels of protection against disclosure, depending upon factors including the content of the writing memorializing the interview and the circumstances of the interview itself. Whether seeking such documents in discovery, or wanting to protect them from discovery, it is important for attorneys to understand the evolving law in this area.
Attorney-Client Privilege and Work-Product Doctrine
Both the attorney-client privilege and the attorney work-product doctrine are encompassed within the duty of confidentiality. Attorneys owe their clients the duty to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets” of the clients. (Bus. & Prof. Code §6068(e); see also California Rule of Professional Conduct 3-100).
The attorney-client privilege is an evidentiary rule that protects confidential communications between a lawyer and client from disclosure to third parties. (See Cal. Evidence Code section 954) Its fundamental purpose is to “safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.” Gordon v. Superior Court, 55 Cal. App. 4th 1546, 1557
The work product doctrine is set forth in section 2018.030 of the Code of Civil Procedure. Its purpose is to allow attorneys to “prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of their cases,” (2018.020(a)), and to “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.” Sect. (2018.020(b)). The statute provides absolute protection to any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” Sect. 2018.030(a). Such a writing is not discoverable under any circumstances. Id. Other work product has more qualified protection in that it is “not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or ”Sect. 2018.030(b).
The statute does not define “work product.” Courts have considered the issue on a case-by-case basis and have generally concluded that only “derivative” or “interpretive” material, that is, “material created by or derived from an attorney’s work reflecting the attorney’s evaluation of the law or facts,” qualifies as work product. See Coito v. Superior Court, 54 Cal. 4th 480, 488 (2012). Nonderivative material, such as “the identity and location of physical evidence or witnesses,” does not constitute work product. Id. at 489.
Recorded Witness Statements as Work Product
Prior to the California Supreme Court’s decision in Coito v. Superior Court, 54 Cal. 4th 480 (2012), the question of whether witness statements were protected against disclosure on work product grounds was unsettled. The court in Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007) had held that attorney notes or summaries of witness interviews were protected as work product, but the court had not previously examined the issue of whether section 2018.030 applied to witness statements.
In Coito, the California Supreme Court clarified the reach of the attorney work product doctrine. The case arose after an accident that resulted in the drowning death of a 13-year-old boy. The child’s mother filed a complaint for wrongful death against the State of California, among other parties. The Attorney General’s office sent two investigators to conduct audio-recorded interviews of four of the six witnesses to the accident. In discovery, the plaintiff sought production of the audio recordings. The state asserted the work product privilege, relying on the Third District’s ruling in Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal. App. 4th 214 (1996), which held that the absolute work privilege applies to witness statements recorded by an attorney. The trial court relied on Nacht and largely denied the motion to compel. The Court of Appeal, criticizing Nacht and relying on Greyhound Corporation v. Superior Court, 57 Cal. 2d 355 (1961), concluded that witness statements are not entitled to work product protection as a matter of law.
The Supreme Court reversed the Court of Appeal to hold that witness statements obtained through an attorney-directed interview are entitled to work product protection. “In light of the origins and development of the work product privilege in California, we conclude that witness statements obtained as a result of an interview conducted by an attorney, or by an attorney’s agent at the attorney’s behest, constitute work ” 54 Cal. 4th at 494.
The court held that where a witness statement reveals an attorney’s impressions, conclusions, opinions, or legal research, the statement is entitled to absolute protection. This would include witness statements “inextricably intertwined” with the attorney’s notes or comments, or where the questions asked (or not asked) “provide a window” into the attorney’s theory of the case or evaluation of the issues. 54 Cal. 4th at 495. The Court went on to hold that where witness statements obtained by an attorney do not reveal the attorney’s thought processes (and therefore would not constitute absolute work product), those are nevertheless entitled as a matter of law to qualified work product protection, since production of these statements would undermine the legislative policy of preventing an attorney from taking advantage of an adversary’s efforts. “Even when an attorney who exercises no selectivity in determining which witnesses to interview, . . . the attorney has expended time and effort in identifying and locating each witness, securing the witness’ willingness to talk, listening to what the witness said, and preserving the witness’ statement for possible future use.” 54 Cal. 4th at 496. Statements that would qualify for the lower level of protection would include, the court stated, those obtained by “an attorney with no particular ”Id.
Under Coito, a party objecting to producing recorded statements on the grounds they are entitled to absolute work product protection must make a preliminary or foundational showing that disclosure would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories.” Upon an adequate foundational showing, the trial court would then determine (including through an in camera inspection if necessary) whether and to what extent absolute work product protection applies, thereby potentially shielding all or portions of recorded interviews from discovery.
Certain factors will increase the likelihood that witness interviews and statements will be entitled to absolute work product protection, according to the court. These include: explicit comments or notes by the attorney stating his or her impressions of the witness or other case issues; questions asked of the witness that provide insight into the attorney’s theory of the case or evaluation of what issues are most important; and follow-up questions that potentially reveal the attorney’s strategy or concerns. (“Lines of inquiry that an attorney chooses to pursue through follow-up questions may be especially revealing.”) In addition, the very identity of particular witnesses interviewed could reveal an attorney’s thoughts or evaluation. 54 Cal. 4th at 496. Under certain circumstances, the court stated, it may be possible to redact a witness statement and thereby protect absolute work product. Id. In other instances, redactions will not offer sufficient protection and the statement will be protected from disclosure. For example, the witness’ statements may themselves reveal the questions Id.
To the extent the absolute privilege does not apply, parties seeking production of recorded witness statements or interviews will have the burden on a motion to compel of showing that “denial of disclosure will unfairly prejudice the party in preparing its claims or will result in an injustice.” 54 Cal. 4th at 500. After Coito, any party seeking recorded witness statements in discovery should anticipate filing a motion to compel, and, if it can be shown that the material is entitled only to qualified protection, be prepared to show that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. 
Protection Available to Employee Statements Provided During A Confidential Attorney Investigation
While the issue in Coito concerned witness statements obtained in litigation, a different but equally important question concerns the protection available to statements by corporate employees obtained by an attorney during the course of a confidential investigation on behalf of the corporate client. The California Supreme Court in Costco Wholesale Corporation v. Superior Court, 47 Cal. 4th 725 (2009) held that an attorney’s written opinion letter following a confidential investigation is privileged, but did not reach the issue of whether witness statements obtained during that investigation would be protected against later discovery.
Attorneys are often called upon to conduct investigations on behalf of their clients. Some investigations are conducted for the purpose of assisting a client with legal advice, and are intended to remain confidential. Others are conducted with the expectation that the results will be disclosed. Witness interviews are are an important part of most if not all investigations.
In Costco, the retail company retained a law firm to provide legal advice as to whether certain employees were exempt under California wage and overtime law. The law firm conducted an investigation, which included interviews by an attorney of Costco employees. Costco, the lawyer, and the two employees understood that the interviews were confidential and would remain so. 47 Cal. 4th at 730. The lawyer ultimately produced a 22-page opinion letter for the client.
Several years later, Costco employees filed a class action against Costco and sought production of the opinion letter. Costco objected on grounds of privilege and work product. The trial court ordered an in camera review of the report by a discovery referee. The referee redacted the opinion letter to excise the portions that contained “attorney observations, impressions and opinions,” leaving factual information about various employees’ job responsibilities, and recommended its production. 47 Cal. 4th at 731. The basis for the referee’s decision was that “statements obtained in attorney interviews of corporate employee witnesses generally are not protected by the corporation’s attorney-client privilege and do not become cloaked with the privilege by reason of having been communicated between the attorney and the client.” Id. The trial court ordered Costco to produce the redacted letter. Costco petitioned for a writ of mandate, and the Court of Appeal denied the petition.
The Supreme Court held that “the attorney-client privilege attaches to [the] opinion letter in its entirety, irrespective of the letter’s content.” 47 Cal. 4th at 732. The court held that the facts supported a prima facie case of privilege: a corporation may claim the privilege (Evid. Code section 954); the corporation retained the lawyer for the purpose of seeking legal advice; and the letter was confidential. 47 Cal. 4th at 733. In that situation, the entire letter was itself privileged. Under that analysis, witness statements contained within an attorney opinion letter would be protected as privileged. “The attorney-client privilege attaches to a confidential communication between the lawyer and the client and bars discovery of the communication irrespective of whether it contains unprivileged material.” 47 Cal. 4th at 734. It was therefore improper to order production of the redacted letter. 
However, that analysis does not resolve the question of whether witness statements obtained in the course of an attorney investigation are protected against disclosure on work product or privilege grounds. Communications by corporate employees to attorneys representing the corporate entity are not always privileged: to make this determination, courts use a dominant purpose test. If the “corporation’s dominant purpose in requiring the employee to make a statement is the confidential transmittal to the corporation’s attorney of information emanating from the corporation, the communication is privileged.” D.I. Chadbourne, Inc. v. Superior Court, 60 Cal. 2d 723, 737 (1964). “If the communication is privileged, it does not become unprivileged simply because it contains material that could be discovered by some other means.” Costco, 47 Cal. 4th at 735. This analysis would support the extension of privilege to statements provided by employee witnesses to attorneys during confidential investigations, where the dominant purpose of the communication is to secure legal advice. 
Even where that test is not met, however, the court’s work product analysis in Coito should apply. Witness statements obtained by an attorney, even of employee witnesses, constitute work product under Coito. To the extent the witness statements are “inextricably intertwined” with the attorney’s thoughts and opinions, those will be more likely to be recognized by the court to constitute absolute work product, and not discoverable.
Recent decisions have clarified the scope of the attorney-client privilege and work product doctrine. Coito enhances the work product protection applicable to witness statements obtained by attorneys, and should apply regardless of the context in which such interviews take place.
Disclaimer: the information in this column is intended to be educational only, and does not constitute legal advice. Please cite check all authorities
Merri A. Baldwin is a shareholder in the San Francisco office of Rogers Joseph O’Donnell P.C., where she focuses on business litigation and attorney liability and conduct, including legal malpractice, attorney-client fee disputes, ethics, professional responsibility and State Bar discipline defense. She is a member of the State Bar of California Committee on Professional Responsibility and Conduct, is a co-chair of the Legal Malpractice section of the Bar Association of San Francisco, and is an adjunct professor at Golden Gate University. She is the co-editor of a book published by the ABA in 2012, The Law of Lawyers’ Liability. She can be reached at firstname.lastname@example.org. The views expressed herein are her own. This article appears in the California Bar Journal as part of COPRAC’s outreach and educational effort. For more information on COPRAC go to: www.calbar.ca.gov/ethics.
 Coito also concerned the issue of whether information responsive to form interrogatory 12.3 is protected as work product. That interrogatory seeks the name and address of any witness from whom the attorney has obtained a written or recorded statement. The Court held that, while ordinarily information such as the identity and location of witnesses would not be protected, in certain cases, such information would constitute work product. 54 Cal. 4th at 502.
 Costco also made clear that it was improper for the trial court to conduct an in camera review of the opinion letter in order to determine whether it was privileged. Evidence Code section 915 expressly prohibits such review. 47 Cal. 4th at 736.
 At the same time, though, information does not become privileged simply because it is transmitted to an attorney. “[A] litigant may not silence a witness by having him reveal his information to the litigant’s attorney . . .” D.I. Chadbourne, Inc., 60 Cal. 2d at 734. Accordingly, the adverse party may interview the witness, or use interrogatories or deposition questioning in an effort to obtain the information that the witness provided to the attorney. See Coito, 54 Cal. 4th at 496.