ABSOLUTELY MAYBE: THE NEW WORK PRODUCT PRIVILEGE

The California Supreme Court has provided a clarification to the question: can a party obtain the statements taken from witnesses in a case where those statements are procured by the opposing counsel? Stated technically, the question is whether the statements are protected from production under the attorney work product privilege?

The case reviewed by the Supreme Court was one involving a drowning. There were 4 witnesses to the drowning, and the defendant, the State of California, at the direction of its attorney, obtained recorded statements of all witnesses. The attorney for the parents of the deceased child made a motion to obtain those recorded statements. The trial court denied the request, and the Court of Appeal reversed. The Supreme Court in turn reversed the Court of Appeal. The Supreme Court remanded the matter to the trial court to make a determination which parts of the statements were “absolutely privileged” pursuant to Code of Civil Procedure section 2018.030.

It is at this point, in my opinion, that the “clarification” is not so clear. If you use the phrase “absolutely privileged” you muddy the waters by asking further: “Which parts of the statements are “absolutely privileged?” The “problem” arises from the language of Section 2018.030 itself. The “absolute privilege” applies only to a “writing that reflects an attorney’s impressions, conclusions, opinions, our legal research or theories.” The age-old problem is the choice of questions: A trained attorney does not ask random questions. The questions are usually intended to elicit information that goes to specific issues in the case, or specific tactical decisions regarding proof or defenses. Yet, all of those “thoughts” can only be implied from the subtext of the statements.

The Supreme Court ventured to give an example of when an attorney's “thought processes” would not be part of the statement taking procedure. It gave the example of a car accident in which the attorney sent out an investigator, with no direction or instruction, and the investigator asked very few questions, simply allowing witnesses to say what they saw or heard.

Every attorney should read this decision for a comprehensive background on the development and refinement of the attorney work product privilege. The decision generally tends to favor the application of the privilege. I would think that usually any supporting declaration of counsel opposing a motion to compel production will include the procuring attorneys statement that the statement was taken under his direction, and was crafted in accordance with his planning of his case or his defense. In any event, there will be rare situations in which the information cannot be procured by any other reasonable method. In those cases, the court still has discretion to require production of the statements unless the party seeking the statements has failed to act with diligence to obtain information independently.

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