I'd write about this opinion even if I completely agreed with it. Because it's important. Almost all of us have obtained (or have thought about obtaining) witness statements. Those of us in the civil arena have similarly almost invariably propounded and/or responded to form interrogatories.
We now know -- or at least have a more informed view -- of whether such statements are protected work product, and whether (or when) you have to answer Form Interrogatory 12.3.
So take a look.
The short answer is that witness statements are often work product -- indeed, often absolute work product -- according to today's unanimous California Supreme Court opinion. Which means you'll obtain (and not turn over) witness statements a lot more.
Far be it from me to critique such a unanimous opinion. But I'm going to do so anyway.
I think it's a major omission that nowhere in the Court's opinion does it mention, discuss or even cite Federal Rule of Civil Procedure 26(b)(3)(C). It's almost as if the Court doesn't even know that this provision exists. The Court holds that you've got to protect witness statements as work product or else the other side will freeride, attorneys will be deterred from getting statements, mental impressions will be disclosed, etc. In other words, disaster. And yet Rule 26(b)(3)(C) was enacted in 1970 in order to expressly provide that witnesses can obtain their statements without any showing whatsoever, much less the type of showing the California Supreme Court now requires in order to override work product protection. And yet, somehow, the federal system soldiers on.
This matters. If a person can obtain his own statement -- whether a party or not -- that creates all the perverse incentives that the California Supreme Court identifies. After all, in the federal system, if you want to "discover" the "mental impressions" of the other side's lawyer, all you have to do is ask the person to request her statement -- s/he can even do it outside discovery -- and the opposing party has to provide it. Parties. Witnesses. Doesn't matter. Boom. You've got the statement. The exact statment that the California Supreme Court says must be difficult or impossible to obtain. So you get to invade the mental impressions of the lawyer, freeride of her work, etc. So the federal system takes the expresss view that these aren't very big (or realistic) downsides, and that the upsides -- settlement, disclosure, truthseeking, etc. -- are worth it.
Seems to me you'd want to at least mention (and hopefully evaluate) that opposing view, as well as the quality of justice that has resulted therefrom during the past four decades, when deciding that this is not a tenable (or preferable) system.
It also seems to me that lots of what the California Supreme Court says about the policy implications of its position are also questionable. For example, the Court finds really troubling the concept that we would ever allow disclosure of what a witness said because that'd invade the mental impressions of the laywer (e.g., what questions she asked, etc.). Okay. I get that. At least in theory.
But if that's true, why do we allow -- as we clearly do -- the witness to be asked in a deposition what questions he was asked (and how the witness answered)? That "invades" the former attorney's mind and obtains her "mental impressions" too, right? That "freerides" off the former attorney's work, too. But it's entirely fine. Why the discrepancy?
The only benefit of not turning over the notes is when the witness (or party) doesn't remember what questions or answers were provided. Only then do any benefits arise from the Court's holding today. But situations involving faded memories are precisely when you want discovery; when obtaining such information gets at the truth.
It's even more bizarre when you realize that the "witness statement" at issue may even be of a party or party-affilliated witness. The other side has a "work product" protection in a recorded statement that your client gave them? You have to give a "special reason" in order to obtain the statement that your client made? Seriously? I mean, yeah, you can just ask your client. But why should you even have to? Why can't you just get the statement -- as you can in federal court -- by simply asking for it? And why do we protect the opposing party's "mental impressions" (e.g., their questions) only when the interviewee has forgotten the questions? Weird.
We're not talking about the attorney's notes here. Those are protected; everyone agrees. We're instead talking about actual evidence -- stuff that can be produced at deposition, at trial, etc. Stuff that, unlike notes, was never secret. If you've disclosed that stuff already (by getting it signed, by having outsiders there, etc.), I don't see why we need to make that work product. Moreover, I see downsides to doing so. Very real ones.
So I'd have liked to see the California Supreme Court engage on this issue a bit more. Because what they've said here doesn't especially persuade me. There seem a ton of counterarguments -- including many that arise from the federal approach -- that deserve consideration (or at least mention).
