174 Litigating CA Wage & Hour Class and PAGA Actions (24th Edition) Seyfarth Shaw LLP | www.seyfarth.com For years, litigants in California had relied upon dicta in Nacht & Lewis Architects, Inc. v. Superior Court885 for the proposition that recorded witness statements taken by an attorney or his agent are entitled to absolute work product protection and thus, are not discoverable. In 2010, however, the Court of Appeal in Coito v. Superior Court886 declined to follow Nacht & Lewis and held that recorded witness statements and signed declarations were not entitled to work product protection as a matter of law. This meant plaintiffs could now sit back while defense counsel expended time and effort conducting witness interviews and then freely obtain their declarations. 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.887 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.”888 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.889 Accordingly, Coito held that where witness statements reveal an attorney’s impressions, conclusions, opinions or legal research, the statement is entitled to absolute protection.890 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.891 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.892 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, 885 47 Cal. App. 4th 214, 217 (1996). 886 182 Cal. App. 4th 758 (2010). 887 Coito v. Superior Court, 54 Cal. 4th 480, 496 (2012). 888 Id. 889 Id. at 495. 890 Id. at 496. 891 Id. at 495. 892 Id. at 500.
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