Coito: The California Supreme Court's Key Ruling on Protection of Witness Statements

Witness statements at issue, in a wrongful death action against the State of California arising from the drowning of a 13-year-old boy, were audio recordings of state investigators’ interviews with the decedents’ companions at the time of the incident.  Attorneys from the California Department of Justice hired investigators and provided them with questions to ask the witnesses. Plaintiffs asked the state to produce the recorded interviews and the names and addresses of the witnesses.  The State sought, and was granted protection from disclosure on the grounds that the information was attorney work product.  The appellate court reversed and the Supreme Court granted review. 

The California Supreme Court’s unanimous decision in Coito v. Superior Court analyzed the work product doctrine from a historical perspective and widely cited the US Supreme Court’s ruling in Hickman v. Taylor, supporting policies underlying the protection of attorneys’ work product privilege, and emphasizing, “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.”  The Coito court also noted that the doctrine is designed “to prevent an attorney from free-riding on the industry and efforts of opposing counsel.”  The Court concluded that absolute protection is provided to writings reflecting “an attorney’s impressions, conclusions, opinions, or legal research or theories,” and “witness statements obtained through an attorney-directed interview,” are at least entitled to qualified protection, if not absolute protection. 

The ruling in Coito provides reinforcement for the attorney work product doctrine and facilitates protection of attorney-directed internal investigations and statements from independent witnesses that reflect the attorney’s mental impressions, strategies, and legal theories.  If legal counsel carefully directs and designs investigations, the content and existence of witness interviews and statements may be protected.