On June 25th, the California Supreme Court issued an opinion (Coito v. Superior Court) that settles the question whether witness interviews by an investigator must be revealed during pretrial discovery. To put the opinion in perspective, I’ll use an example from the employment litigation world.
Suppose an EMPLOYEE sues her EMPLOYER claiming that he/she was the victim of sexual harassment by a supervisor. EMPLOYER hires an attorney who, in the course of preparing the EMPLOYER’s defense, hires a private INVESTIGATOR to interview certain co-workers who may have knowledge of facts suggesting the EMPLOYEE is fabricating the claim. The question addressed in the Coito case was whether EMPLOYER’s attorney could be (1) compelled to give up the recorded statement obtained by the INVESTIGATOR; and/or (2) compelled to identify the co-workers that the INVESTIGATOR interviewed.
The Supreme Court held that the recorded statement itself is entitled to at least qualified work product protection. This means that, if EMPLOYER’s attorney establishes that disclosure of the recorded statement would reveal the attorney’s “impressions, conclusions, opinions, or legal research or theories,” EMPLOYER’s attorney cannot be compelled to share the statement. If the EMPLOYER’s attorney cannot make this showing, then the statement is still protected from disclosure unless the EMPLOYEE’s attorney can show he/she will be “unfairly prejudiced” in preparing EMPLOYEE’s claim without having the statement.
As to the names of witnesses interviewed, the Supreme Court held that this information is only protected if EMPLOYER’s attorney persuades a court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case (absolute privilege) or would result in EMPLOYEE’s attorney taking undue advantage of the attorney’s industry or efforts (qualified privilege).