Blog

A recent decision from the California Supreme Court in Coito v. Superior Court regarding whether the identity of witnesses and witness statements constitute work product will likely impact everything from the initial investigation of a case to objections/responses to discovery and law and motion. What is critical to take from this opinion is that investigations involving obtaining witness statements or interviewing witnesses that are not carefully guided, overseen and directed by counsel are not recommended.

The California Supreme Court reviewed approximately 65 years of California Jurisprudence which followed the concept of the Work Product Privilege (first put forth by the US Supreme Court in 1947). The Court differentiated two lines of cases (1) Work Product that contains the attorney’s impressions, conclusions, opinions, legal research or theories and (2) Work Product that is created due to an attorney’s initiative, industry, decision, effort or conducted at his/her behest. Category 1 is entitled to Absolute Privilege from production. Category 2 is entitled to Qualified Privilege and may be ordered produced if the other side can show undue prejudice, injustice or some other form of inequity.

The Supreme Court demonstrated by its review of Appellate Court handling of these issues that there was inconsistency in the understanding of the Work Product Privilege and its application by the lower courts. Essentially, it was forwarded that most trial courts were sometimes taking the position that witness statements were absolutely privileged when, at most, they might be entitled to qualified privilege. Similarly, the courts were denying access to the identification of witnesses interviewed by counsel (or counsel’s investigator) under the theory that simply identifying witnesses whom counsel felt were important enough to interview revealed Work Product. As you will see, the California Supreme Court made a clear and distinct statement that many of the Appellate cases that interpreted these issues (including a well-used one in discovery - Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217) – were simply wrong in the protections offered and in their analysis of the privilege.

The Court differentiated between witness statements and witness information. These are discussed separately herein.

1. Witness Statements

The Court found that in light of the legislatively declared policy and the legislative history of the work product privilege, witness statements obtained by an attorney or at an attorney’s direction or behest are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if a party can show that disclosure would reveal its “attorney's impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) If not, then the items would be considered to be subject to a “qualified privilege” which would allow discovery of same if plaintiff can show that denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice.” (§ 2018.030, subd. (b).)

Clearly implicit in the ruling was that statements that were obtained without the direction or request of an attorney (for example by a claims adjuster or an IA or investigator working without an attorney’s direction) would likely NOT be considered to be protected as Work Product.

Comment: As long as a witness statement is obtained by an attorney (i.e. the interview is conducted by an attorney) it is likely subject to Absolute Privilege as the questions and follow-up questions would reveal an attorney’s impressions, conclusions, strategy and theories. If the statements are obtained by an investigator, these are likely to be considered to be at least subject to a “qualified privilege” as long as that investigator is acting at the direction and oversight of counsel (if not the witness statements are likely not privileged). If the qualified privilege applies, the statements may still be subject to discovery if the Court determines that unfair prejudice or injustice will occur if the reports are not produced. The bottom line is that if a recorded statement is going to be obtained and the goal is to absolutely protect same from production, Counsel should probably be present for the interviews and likely conduct same. It is clear that counsel needs to be closely involved in the investigation process if the statements obtained during that process are to be considered entitled to Absolute Privilege against production. Simply forwarding the statements through counsel (without counsel being involved in discussing the questions and guiding the investigator’s investigation and questioning) will not be sufficient to protect the statements from discovery.

Additionally, it is clear that if a statement is obtained by anyone other than counsel, the other side can question whether or not the statement is absolutely privileged and assert that same is only entitled to qualified privilege (i.e. it does not reveal an attorney’s impressions, conclusions, opinions, legal research or theories). This would result in an in-camera review of the material. Law and motion would occur with one side claiming privilege and the other side claiming either (1) that the material is not privileged since an attorney was not involved in the procurement or (2) that the statement is entitled to only qualified privilege. If the Court agrees the material is not privileged, it will order it’s production. If the Court finds the material is only subject to qualified privilege, the burden will then be on the party seeking production to prove unfair prejudice and/or injustice will occur absent the production.

What is also clear is that an IA or investigator cannot just be hired to obtain recorded or written statements without guidance from counsel. If this occurs, the statements are not likely to be considered work product and will be discoverable. Additionally, the “opening” created by distinguishing absolute privilege from qualified privilege will likely result in substantial law and motion

2. Witness Identity and Information

As to the identity of witnesses from whom counsel or their agent has obtained statements, the court held that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, the party must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts (qualified privilege).

Comments: It is now clear that witness identity information (name, address, location) which was discovered via investigation is NOT privileged except under very limited circumstances. Unless it can be shown that revealing such information would reveal the attorney’s tactics, impressions or evaluation of a case – said witness information would not be subject to absolute privilege. Accordingly, the burden would be on the party attempting to not reveal this information to establish that even identifying the witness would reveal counsel’s impressions, thoughts, conclusions and legal theories. A qualified privilege (subject to law and motion) would allow for counsel to not identify such witnesses if great effort was made by counsel to find certain individuals and it would be unfair to simply disclose same. Thus, it appears that unless counsel is involved in the investigation and guides same – the likelihood of protecting witness information from discovery is slim to none. This is a substantial departure from previous California law (Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217) which protected from identification witnesses whom were interviewed and from whom a statement was obtained as same would reveal which witnesses were important enough in counsel’s estimation to interview/obtain a statement. Now, the Court will have to make a determination as to whether the production of such witness information is truly protected (i.e. does the mere identification reveal Counsel’s impressions, thoughts, conclusions and legal theories). The California Supreme Court definitely made it clear that when an investigator is hired by an investigator to interview “all the witnesses” the witness information would NOT be subject to any privilege.

Overall Comment: This decision emphasizes the importance of involving counsel early on in investigations (even before the investigator is hired) or else there is substantial risk that the fruits of the investigation (in particular witness statements and the identity of witnesses) will not be considered to be privileged from production. Essentially, by just involving an investigator or a claims adjuster and allowing them to interview witnesses (obtaining witness statements) without close oversight and guidance by counsel, the statements obtained by that investigator will likely be fully available to the other side and not considered to be work product. Close communication between counsel and the investigator/adjuster (with counsel being involved with preparing the investigator, providing questions and direction) will be necessary prior to the interviews taking place. It might even be prudent in big/important cases for counsel to be present with the investigator on key interviews and to conduct those interviews. The concept of hiring IA’s and investigators and having them conduct recorded interviews without having counsel involved to carefully guide and be involved in such interviews is subject to substantial question and risk going forward.

It still appears arguable that an investigator can speak with a witness (and not record the interview) and then provide a report concerning same in preparation of litigation and that report would maintain its confidential nature (communicating information in preparation of litigation). However, we will continue to monitor these issues as the case law develops from this new Supreme Court decision. The risk of a Court ordering production of such reports would certainly be far less if that investigator was hired by counsel (as opposed to an adjuster and/or claims representative). Without the involvement of counsel, it is quite possible that the work product privilege would be found not to apply to any such reports. Accordingly, it would be our suggestion that an attorney be contacted to hire the investigator and then guide/direct the investigation. All reports should be forwarded to counsel who would then distribute to Claims personnel and Risk Management as appropriate.