This article was written by Law Office intern, Monica Baranovsky.

How Can You Protect Witness Lists Created During Workplace Investigations?

The work-product doctrine is different from the attorney-client privilege and can cover certain communications that the attorney-client privilege does not. California law also differs slightly from federal law regarding the work-product doctrine.

The purpose of the work-product doctrine is laid out in California Code of Civil Procedure § 2018.020. It is intended to preserve privacy in trial preparation so as to encourage thorough trial preparation and investigation of both favorable and unfavorable aspects of a case. To this end, it is meant to protect a lawyer from taking undue advantage of their adversary’s industry and efforts. This is a direct adoption of the case law set forth in Hickman v. Taylor, 329 U.S. 495 (1947).

The attorney is the sole holder of this privilege, and it is considered separate from the attorney-client privilege because it is an individual privacy interest that belongs to the attorney.

California Code of Civil Procedure § 20118.030 divides the work-product doctrine into two separate categories: absolute and qualified. The absolute privilege protects certain things completely from being discovered. This includes writings that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories. The term “writing,” in § 2016.020(c), includes any form of recorded information such as audio recordings. On the other hand, any attorney work product that does not fall under the absolute privilege falls under subdivision (b) of § 2018.030, which provides qualified protection. Specifically, this work product is protected and not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense.

There is no specific definition of what is or isn’t qualified work product in the Civil Discovery Act. California courts have been proceeding on a case-by-case basis and focus on a distinction between derivative/interpretative material on the one hand and nonderivative/evidentiary material on the other. Work product protection generally extends to “derivative” material, or anything created by or derived from an attorney’s work on behalf of a client that reflects the attorney’s evaluation or interpretation of the law or facts involved. Anything that’s purely evidentiary is not protected.

There is currently a split in California courts about how to handle witness lists gathered during workplace investigations and whether they are discoverable under work product or not.

Nacht & Lewis Architects Inc. v. Superior Court, (1996) 47 Cal. App. 4th 214 dealt with witness interviews and held that both the lists of witnesses and transcripts or recordings of witness interviews were in fact protected under the work-product doctrine. The court was concerned about the difference between statements made by witnesses on their own initiative, then given to counsel for defense, versus statements actually taken by counsel. Regarding statements given voluntarily and then handed over, the court believed that no work product protection would be available as to either the statements or a list of those witnesses. Id. at 217-218. However, interviews conducted by counsel themselves would be treated differently and considered covered under work-product doctrine. Id. This is because interviews recorded in notes or otherwise, by an attorney, would reveal a particular lawyer’s evaluation of the case since they chose certain interviewees for reasons specific to their theories on the case. Id. Furthermore, these interviews would be guided by questions the lawyer deemed relevant and then recorded by the lawyer with potential notes and comments that reflect the lawyer’s opinions and thoughts on the case. Id.

Coito v. Superior Court, (2010) 182 Cal. App. 4th 758 is in direct conflict with Nacht. It claims to reject the reasoning laid out in Nacht, but it does not supercede it. In Coito, a request for production of documents by petitioner sought names and information of witnesses from whom written and recorded statements had been obtained. Counsel for the state had sent investigators to interview the witnesses and provide questions to the investigators that counsel wanted answered. Some of the statements were recorded.

The court of appeal held that neither the witness lists nor the recorded conversations should be afforded either absolute or qualified work product. Id. at 351. The court rejected the theory that who a lawyer chooses to interview could show counsel’s impressions of a case. They said that while it is possible for a lawyer to reveal his or her thoughts about a case by the way in which they conduct a witness interview, this is generally too broad of a proposition to be considered useful when extending the protections of the work product doctrine. Id. Competent lawyers, the court feels, should be able to conduct their interviews, both in who they choose and how they notate the interviews, in such a way as to disguise their impressions of a case.

It should be noted that Coito will be heard by the California Supreme Court, who granted review on 6/9/2010. This should help clear up the discrepancy between the two cases. Until then, however, a few things must be taken into consideration since this opinion significantly widens the scope of what information is discoverable under the work-product doctrine.

First, the attorney-client privilege will sometimes cover things that the work-product doctrine does not. They are independent protections from one another, and it is possible that witness lists prepared in the course of an attorney-client relationship for legal purposes might be protected. Second, until the California Supreme Court weighs in, Nacht is still good law, and courts might choose to follow its reasoning in deciding how to classify witness lists and witness recordings.

Finally, the court does give a possible hint to a lawyer who is performing a witness interview. They state that “if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product.” Id. at 351. This would seem to indicate that if a witness interview transcript was not recorded or written down verbatim, and it was selectively written to incorporate only relevant statements combined with a lawyer's thoughts and impressions, that it would not fall under the scope of Coito and might still be considered work-product doctrine.