In Coito v. Superior Court, the California Supreme Court resolved a long-standing dispute on the protections under the Attorney Work Product doctrine.  The Court addressed what work product protection, if any, should be accorded to 1) recordings of witness interviews conducted by investigators employed by defendant’s counsel, and 2) information concerning the identity of witnesses from whom defendant’s counsel has obtained statements. Defendant objected to plaintiff’s requests for discovery of these items, invoking the work product privilege. The trial court sustained the objection, concluding as a matter of law that the recorded witness interviews were entitled to absolute work product protection and that the other information sought was work product entitled to qualified protection.  A divided Court of Appeal reversed, concluding that work product protection does not apply to any of the disputed items. The Court of Appeals issued a writ of mandate directing the trial court to grant the motion to compel discovery.

The Supreme Court ruled that the Court of Appeasl erred.  It stated that in light of the legislatively declared policy and the legislative history of the work product privilege, the recorded witness statements are entitled, as a matter of law, to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its “attorney’s impressions, conclusions, opinions, or legal research or theories.”  If not, then the items may be subject to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice.”  As to the identity of witnesses from whom defendant’s counsel has obtained statements, it 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, defendant 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).

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