Your insured has been in an accident, and you want to find out what happened before the lawsuit is filed. You send a private adjuster to the scene and discover several third-party witnesses that provide information helpful to your insured. You want to obtain a recorded statement, but are worried about it being disclosed in litigation. Should you do it? Yes, but you better hire an attorney first.
Under California law, recorded statements obtained by an attorney are entitled to protection under the attorney work product privilege. Code of Civil Procedure section 2018.030 codifies California’s attorney work product privilege.
Section 2018.030, subsection (a), provides an absolute protection for a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” Such a writing is not discoverable under any circumstances. Writing is defined in section 2016.020 by reference to Evidence Code section 250. That section defines writing as:
handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
Id. (emphasis added).
Section 2018.030, subsection (b), provides a qualified protection for all other attorney work product. Discovery of such work product may be permitted, if the court determines that denying discovery of it will (i) unfairly prejudice the party seeking discovery in preparing its claims or defenses or (ii) result in an injustice. Section 2018.030 does not define work product; thus, courts have determined whether certain material is protected on a case-by-case basis.
The California Supreme Court addressed the protection afforded to recorded statements in Coito v. Supreme Court (2012) 54 Cal.4th 480. There, a mother sued the State of California for wrongful death after her 13-year-old boy drown to death. (54 Cal.4th at 486.) Counsel for the State sent two investigators to interview witnesses to the accident. (Id. at 487.) Counsel provided the investigators with questions he wanted asked. The interviews were record and saved on a compact disc. Counsel used the recorded material in depositions of the witnesses. Plaintiff later sought discovery of the recorded statements. The State refused to produce the statements, asserting the attorney work product doctrine. Plaintiff then filed a motion to compel. The trial court denied the motion, and the Court of Appeals reversed, holding the State had made no showing that the statements were attorney work product. (Id. at 488.) The State appealed to the Supreme Court.
On appeal, the Supreme Court first addressed whether recorded statements fell within the definition of attorney work product. The Court reviewed the history of the attorney work product privilege in California, and concluded “[i]n light of the origins and development of the work product privilege in California, . . . 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 product protected by section 2018.030. ” (Id. at 494.)
The Court then addressed whether the statements were entitled to absolute or qualified protection. The Court held recorded statements may be entitled to absolute protection if the party asserting the protection can show “’disclosure of the statement would reveal its attorney’s impressions, conclusions, opinions, or legal research or theories.’” (Id. at 485.) The Court noted a statement would reveal an attorney’s impressions or opinions when, for example, the witness’s statements were “inextricably intertwined” with explicit comments or notes by the attorney stating his or her impression of the witness, the witness’s statements, or other issues in the case. (Id. at 495.) Additionally, a recorded statement may reveal an attorney’s thought processes when questions the attorney chooses to ask provide an insight into the attorney’s evaluation of the case. This is particularly true when the attorney chooses to ask follow-up questions. (Id.) Finally, the Court observed in some cases, the “very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information.” (Id.)
The Court went on to hold even when a recorded statement does not reveal an attorney’s mental processes, the statement is still entitled as a matter of law, to at least a qualified protection under section 2018.030. (Id. at 494.) The Court noted that the qualified privilege would apply:
Even when an attorney exercises no selectivity in determining which witnesses to interview, and even when the attorney simply records each witness’s answer to a single question (“What happened?”), [because] the attorney has expended time and effort in identifying and locating each witness, securing the witness’s willingness to talk, listening to what the witness said, and preserving the witness’s statement for possible future use.
(Id. at 496.) Finally, the Court held a party seeking disclosure has the burden of establishing denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. (Id. at 499.) When, for example, a witness is no longer available or accessible, the party may be entitled to disclosure of the statement. (Id. at 496.)
So what’s the bottom-line for you? If you want to obtain a recorded statement, there are certain steps that you should take. First, hire an attorney to identify witnesses and to documents efforts taken in doing so. Second, have the attorney draft specific questions to ask the witnesses, including questions that would reveal potential claims or defenses. Finally, consider whether the attorney should be present for the interviews to ask follow-up questions. As stated in Coito, follow-up questions are especially revealing of an attorney’s thought processes. While all of these steps may be more time consuming and costly, they could save you from having to disclose potentially damaging information in the future. As they say, an ounce of protection is worth a pound of cure.
ABOUT THE AUTHOR
Tracey Angelopoulos specializes in civil litigation in the areas of personal injury, professional liability, and general liability. Contact Tracey at 858.459.4400 or firstname.lastname@example.org.