140 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com In 2012, the California Supreme Court in Coito reversed the Court of Appeal, holding that attorney-directed witness interviews and statements are entitled as a matter of law to at least qualified work product protection and may be entitled to absolute protection upon a proper showing.819 Influenced by the legislative history and policy underlying the protection of attorney work product, Coito concluded that a default rule allowing discovery of attorney-procured witness statements would impede the Legislature’s intent “to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of their cases.”820 There would be a chilling effect on case investigation and preparation, which might inhibit the truth from coming out. Moreover, it would undermine the legislative policy of preventing an attorney from taking advantage of an adversary’s efforts.821 Accordingly, Coito held that where witness statements reveal an attorney’s impressions, conclusions, opinions or legal research, the statement is entitled to absolute protection.822 Coito pointed out that absolute work product protection is more likely to apply when witness statements include or evidence (1) explicit comments or notes by the attorney stating his or her impressions of the witness of other case issues, (2) facts that provide a window into the attorney’s theory of the case or the attorney’s evaluation of what issues are most important, (3) follow-up questions that reveal the attorney’s thoughts or strategy, and (4) the selection of a specific witness from a multitude of witnesses available.823 Even if witness statements do not reveal an attorney’s impressions or opinions sufficient to merit absolute protection, they will ordinarily not be discoverable unless the party seeking disclosure establishes that that denial of such discovery will result in unfair prejudice or injustice.824 If a party resisting discovery alleges that a witness statement is absolutely protected, that party must make a preliminary or foundational showing that the disclosure would reveal the attorney’s impressions, conclusions, opinions, legal research or theories.825 The trial court may then determine whether and to what extent the absolute privilege applies.826 The Supreme Court’s decision in Coito expanded work product protection for witness interviews and signed declarations in California state courts. This case also highlights the importance of involving legal counsel as early as possible in order to protect witness interviews and declarations through the attorney work product doctrine. Interviews should be conducted by counsel, or at the direction of counsel, as the work product of non-attorney investigators will be subject to discovery. 819 Coito v. Superior Court, 54 Cal. 4th 480, 496 (2012). 820 Id. 821 Id. at 495. 822 Id. at 496. 823 Id. at 495. 824 Id. at 500. 825 Id. 826 Id.
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