Court of Appeal Says Witness Statements Prepared by Counsel Are Not Protected Work Product

In Coito v. Superior Court (State of California) (March 4, 2010) ___ Cal. App. 4th ___, 2010 WL 728571, the Fifth District Court of Appeal, citing a long line of cases going back to Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, held that the attorney work product doctrine does not protect attorney-prepared statements of third party witnesses. The Court criticized and refused to follow Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, which held to the contrary. The Court explained:

We agree with petitioner's argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid.Code, § 1235), prior consistent statements ( id., § 1236), or past recollections recorded ( id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness's recollection, impeach the witness's testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)

“The purpose of the [work-product] doctrine is to prevent incompetent counsel from taking unfair advantage of his adversary's efforts in preparation for trial, not to suppress relevant testimony which happened to have been obtained by the opposition.” (Jasper Construction, Inc. v. Foothill Junior College Dist. (1979) 91 Cal.App.3d 1, 16.)

For those reasons, we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product. Because such statements are not work product, neither is a list of witnesses from whom statements have been obtained (the list requested by form interrogatory No. 12.3).

Slip op. at 5-6. I believe the Court reached the correct result.