Attorney Work Product: Does the Privilege Apply to Witness Statements?

California law protects an attorney’s “work product” from discovery by the other side. The purpose of the privilege is to shield an attorney’s thoughts and impressions about a given case; an opponent can discover evidence, but not what the opposing attorney is thinking. One issue that has proved troublesome over the years is whether witness statements are protected by the work product privilege. In a strict sense, the answer is no. When a witness gives a statement about what happened, that statement is evidence. Usually, such statements are tape recorded or are in the form of a written narrative signed by the witness. But what if an attorney interviews the witness and takes down notes of what the person says? Is that writing protected by the work product privilege?

The California Supreme Court analyzed this very isue in Coito v. Superior Court, 54 Cal.4th 480 (2012).  The court found that recorded witness statements are at least entitled to a qualified privilege -- and that they are covered by an absolute privilge if they reveal the attorney's impressions, conclusions, opinions or legal theories. 

Each case will turn on specific facts, but parties need to be careful in protecting informaiton that properly comes within the attonrey's "work product" privilege.