Can Witness Statements be Withheld from Opposing Counsel Under Work Product Protection?
by: Chad S. Tapp and Matthew R. Day
You are the owner of a popular gourmet grocery store, and take pride in maintaining a clean and safe establishment. One day, you hear a thump and see a customer lying in a puddle of an unknown liquid. The customer immediately starts yelling about suing you for having water on the floor. You know the aisles are checked regularly, and that your employees are instructed to immediately clean up spills. You have the assistant manager take statements from other customers and store employees. One year later, the customer who claims he slipped files a lawsuit against you, and his attorney attempts to obtain the statements. Can the attorney do this? The answer is, it depends.
There is a strong body of California law that protects attorneys’ work product so they can prepare their cases thoroughly, and investigate the favorable and unfavorable aspects of the issues pertaining to their clients. Lower courts have given broad protection under the theory of attorney work product.
Under California law, an attorney’s work product is protected from disclosure to the opposing party. Written materials that reflect “an attorney’s impressions, conclusions, opinion, or legal research or theories” are given absolute protection, meaning that a court cannot force the attorney to hand his or her work over to the other side. Other work product is given qualified protection. Qualified work product is not discoverable unless the court determines that the denial of discovery will unfairly prejudice the opposing party or will result in an injustice. Witness statements can be an integral part of the defense strategy that may be entitled to absolute protection, qualified protection or afforded no protection.
In a recently published case entitled Coito v. The Superior Court of Stanislaus County, the California Supreme Court looked to reign in the Superior Court’s application of the attorney work product doctrine. The Court concluded that witness statements obtained as a result of an interview conducted by an attorney’s agent at the attorney’s request, are entitled to qualified work product protection. Additionally, witness statements may be entitled to absolute protection if disclosure of the statement would reveal the attorney’s tactics, impressions, or evaluation of the case.
The Supreme Court further held that the identity of witnesses who provided statements is not automatically entitled to either absolute or qualified protection. In order to invoke absolute protection, the court must be persuaded that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case. To persuade the court that there is at least a qualified privilege, the party must show that disclosure would result in the opposing attorney receiving an undue advantage because of the other lawyer’s work or efforts.
What Does This Mean for Business Owners, Their Insurance Carriers, or Other Entities?
Witness statements taken by an employee or investigator at the request of a business, public entity or an insurance carrier prior to the filing of litigation are generally not considered to be attorney work product. An investigator’s observations are not protected under any privilege if the investigation is not performed at the request or direction of an attorney. If statements are later provided to an attorney, they do not automatically become attorney work product. The work must originate with the attorney or the attorney’s agents. The work product rule is designed to satisfy an attorney’s requirement for privacy. In the case of the grocery store, the assistant manager may have been told by witnesses that the customer who allegedly fell seemed intoxicated, had been stumbling and had been carrying a beverage cup from which liquid spilled prior to his fall. In our example, witness statements taken by the assistant manager will not be protected because there was no forethought and the simple question “What happened?” was asked.
Even if the investigation is conducted and statements are collected at the direction of an attorney, those statements will not be guaranteed absolute protection. In the case of the grocery store, if the statements were taken at the direction of counsel, with specific and targeted questions, the statements may be protected.
How Can Businesses and Other Entities Protect Their Investigations?
A business should take time to plan an investigation strategy with counsel. Interviews will be absolutely protected when the witness’ statements are “inextricably intertwined” with explicit comments or notes by an attorney or agent for the attorney stating impressions of the witness, the witness’ statements, or other issues in the case. However, an interview that reflects no particular foresight, strategy, selectivity, or planning and does not reveal anything significant about the attorney’s/agent’s impressions, conclusions, or opinions of the case, will not be protected.
Specific Tips for Protecting Your Investigation
It is important to be selective in who is interviewed, and the timing of the interview is crucial. Counsel should be consulted immediately where there is a potential liability exposure. Where potential exposure is less of a concern, an investigation strategy pre-developed with counsel, may be utilized.
In cases involving multiple witnesses, the decision to obtain statements from a select number of witnesses may reflect the evaluation or conclusion regarding which witnesses are important. The very fact that the attorney or attorney’s agent has decided to interview a particular witness may sometimes reveal important tactical or evaluative information, particularly in cases where there are a large number of witnesses.
It is also important to be selective in which questions are asked. Simply asking a witness “What happened?” does not demonstrate any particular impression or conclusion. A series of questions tailored to the particular accident and witness is more likely to be protected as specific questions provide insight into the attorney’s theory of the case or the evaluation of what issues are the most important.
Documentation of efforts is key. Sometimes it takes significant effort to track down a witness or to determine which witness to interview (i.e., locating documents to determine the identity of a witness and/or whether that witness will have relevant information). In such cases, the witness list is the result of the attorney or agent’s industry and effort and may be protected.
Ultimately, whether or not an investigation will be protected will be determined on a case by case basis. When investigating a claim, proper planning and strategy from the outset, including the early involvement of counsel, is the best means to ensure witness statements and witness lists are protected.