Thursday, March 04, 2010

Coito v. Superior Court (Cal. Ct. App. - March 4, 2010)

With all due respect to Justice Kane, I'm going to have to agree with Justice Dawson on this one.

It's a case that's important to pretty much every California attorney (or at least every California litigation attorney): Whether statements made by a witness and recorded by a lawyer (or her representative) are protected work product. Some courts have held that they are, including the California Court of Appeal, and some courts have held that they aren't (including different panels of the California Court of Appeal).

Justice Dawson persuades me that it's not work product. Granted, on Tuesday, I just finished Upjohn with my class, and Justice Dawson's view is exceptionally similar to the federal rule on this subject, so maybe I was predisposed to find that position persuasive. But I slam plenty of federal cases. Both inside and outside of class. So think that this is really my true belief.

It's not that Justice Kane doesn't have a point. The questions that are asked may well reflect, to a degree, the mental impressions or conclusions of an attorney. But I don't think that's enough to make the notes work product and thereby impede important discovery. In this regard, I'm not sure I can say it any better than Justice Dawson did: "We do acknowledge that an attorney could reveal his or her thoughts about a case by the way in which the attorney conducts a witness interview. We are confident, however, that competent counsel will be able to tailor their interviews so as to avoid the problem should they choose to do so. We also note that, if there were something unique about a particular witness interview that revealed interpretive rather than evidentiary information, nothing about our holding would prevent the attorney resisting discovery from requesting an in camera hearing before the superior court and the opportunity to convince that court that the interview or some portion of it should be protected as qualified work product."

I think that the deeper problem with the majority rule is that it will encourage attorneys to take rough notes -- and by "rough notes", I mean "something that's their own mental impressions, not something totally or nearly verbatim" -- because that way it'll be protected work product. Indeed, after Coito, that's perhaps precisely what attorneys should do. The downside of which, of course, is that (1) it's harder to impeach people that way, and (2) your notes might not be as good as they would otherwise be. The latter concern being why Upjohn and related cases made up the work product rule in the first place.

Notwithstanding this fact, I'm persuaded that the Court of Appeal gets this one right. And on a more practical level, know the rule. Put away those tape recorders and verbatim notes. Or at least recognize that it's going to be subject to discovery.