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California Appellate Court Rejects Nacht & Lewis Regarding the Scope of the Attorney Work Product Doctrine in California

Appellate News Flash

March 2010
By: John Gherini

On March 4, 2010, the California Court of Appeal for the Fifth Appellate District issued an opinion in Coito v. Superior Court (March 4, 2010) 2010 Cal. App. LEXIS 292, 17, which ostensibly rejects Nacht & Lewis Architects Inc. v. Superior Court (1996) 47 Cal.App.4th 214. Since its publication 15 years ago, Nacht & Lewis has been widely used by counsel in California, not only to object to discovery requesting statements by third-party witnesses, but also to object to requests for the identity of witnesses interviewed on the grounds that information violates California's work product doctrine.


The Coito court reached the opposite conclusion, holding that statements by third-party witnesses, and the identity of the witnesses interviewed by counsel, were discoverable, even if the statements were taken by counsel. The court then went a step further and indicated that attorney notes from an interview with a third-party witness may be discoverable as well. In so doing, the Coito decision alters the landscape in California on the scope of the work product doctrine and counsel practicing in the state should be mindful of its holding when conducting an investigation into a case.


Historical Background of the Work Product Doctrine


The attorney work product doctrine was first established in the case of Hickman v. Taylor (1947) 329 U.S. 495.  There, the U.S. Supreme Court recognized that certain materials prepared by an attorney should be protected and not discoverable.  However, the California Supreme Court was not so eager to adopt the doctrine.  In Greyhound v. Superior Court (1961) 56 Cal.2d 355, the California Supreme Court explicitly stated that the work product privilege established in Hickman did not exist under California law.  (Id. at 401.) 


In response to the Greyhound case, the California State Legislature added provisions to the California Civil Discovery Act that codified the work product doctrine. (See Code of Civ. Proc. ยง 2018.030(a)-(b).) The Legislature divided the doctrine into two parts by creating an absolute privilege and a qualified privilege. Although the scope of information intended to be covered under the absolute privilege was well defined as an attorney's "impressions, conclusions, opinions, or legal research theories," the Legislature left it up to the courts to determine on a case-by-case basis what constitutes qualified work product.


In Nacht & Lewis, the California Court of Appeal for the Third Appellate District applied a liberal test in determining whether the qualified work product doctrine applied. There, the court determined that witness interviews were absolutely protected from discovery because they revealed a counsel's "impressions, conclusions, opinions, or legal research or theories" within the meaning of the attorney work product doctrine. (Nacht & Lewis, supra, 47 Cal.App.4th. at 217.) The court also concluded that even lists of witnesses that were interviewed would be protected under the qualified work product doctrine because a list would tend to reveal counsel's evaluation of the case by identifying the persons that counsel deemed important enough to interview. (Id.) This decision had the practical effect of rendering Judicial Council Form Interrogatory, Nos. 12.2 and 12.3, useless. Those requests sought a list of witnesses interviewed and a copy of the written or recorded statements obtained. Nacht & Lewis squarely ruled that both were protected by the work product privilege.

Coito v. Superior Court


The Fifth Appellate District's decision in Coito called into question the Nacht & Lewis decision. In Coito, a woman filed a wrongful death complaint against various defendants, including the State of California, after her 13-year-old son drowned in the Tuolumne River. At the time of the drowning, six other juveniles were present at the site and witnessed the incident. Counsel for the state sent investigators to interview the witnesses and provided questions to the investigators that counsel wanted answered. Several statements from witnesses were recorded.


Plaintiffs propounded Judicial Council Form Interrogatory, Nos. 12.2 and 12.3 (among others), and requested the state produce any recorded statements. The state objected that the statements and a list of witnesses were protected under the work product doctrine as defined by Nacht & Lewis. Plaintiffs filed a motion to compel, which was denied by the trial court. Plaintiffs then took a writ to the appellate court.


In deciding whether witness statements are protected attorney work product, the Coito opinion surveys the history of the work product doctrine in California. The court concludes, on the basis of this survey, that witness statements were almost always treated as being discoverable because they are "evidentiary" in nature rather than "derivative." (Id. at 9.) The court placed significant weight on the "derivative" versus "non-derivative" distinction. The court explains that derivative material is derived from an attorney's evaluation or interpretation of the law or facts, and is, therefore, protected attorney work product. In contrast, non-derivative material is material that is evidentiary in nature, and as such, should be discoverable.


The court then attacked the Nacht & Lewis decision as being overbroad and without sufficient analysis. Supported by its review of the history of the work product doctrine in California, the Coito court focused on policy considerations and seemed intent on crafting a bright line rule that would prevent "incompetent counsel from taking unfair advantage of his adversaries' efforts... ." (Id. at 11.) The court then held that witness statements are not attorney work product, under either a qualified or absolute privilege, and as such, neither are lists of witnesses from whom statements have been obtained. (Id.)


Perhaps more alarming than the attack on Nacht & Lewis is the court's dismissal of the difficult question confronted by Nacht & Lewis: what happens when an attorney's evaluation or strategies of a case are revealed through the questions asked of the witness or the selection of what witness to interview? The Coito court simply states it is confident "competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so." (Id. at 12.) Interestingly, in the next paragraph, the court backtracks slightly and explains that if a unique situation occurs during the interview of a particular witness, counsel could always request an in-camera review to attempt to persuade the court that the interview is qualified work product.



In conclusion, it is clear the validity of the Nacht & Lewis case has been seriously called into question. Objections to discovery requests based on Nacht & Lewis may be rejected in favor of the Coito court's bright-line-rule approach to the work product doctrine. As a result of the Coito decision, counsel should be cautious when commencing an investigation involving independent witnesses. Counsel should also be aware that any notes taken by the attorney or his or her representative at a witness interview, as well as any statements taken from a witness, may be discoverable. Similarly, any lists of witnesses that counsel compiles will likely be subject to discovery.


While the long-term implications of the Coito decision are unclear at this time, due to the strong language in the opinion, there is little doubt the decision will impact discovery disputes in the near term. With two California appellate courts issuing opposing rules on the scope of the work product doctrine, ultimately the question will be one for the California Supreme Court.

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