California Court Holds That Non-Party Witness Statements Are Not Privileged

Although this blog was primarily intended to discuss New York civil litigation, in this entry I'm discussing a California appellate decision because I find that it has a profound impact on discovery rules and could be persuasive authority for a further broading of pre-trial discovery in other jurisdictions.

In Coito v. Superior Court, 10 C.D.O.S. 2697, a divided California appellate court ruled on Thursday that non-party witness statements which are either recorded or documented in writing by attorneys or their representatives aren't privileged work product and, therefore, are subject to pre-trial discovery. 

In the lower court, Stanislaus County Superior Court Judge William Mayhew relied on a decision by the Third District appeallate court in Nacht & Lewis Architects Inc. v. Superior Court (McCormick), 47 Cal.App.4th 214, as authority to deny plaintiff's attorney's demand for the recorded statements of four juveniles who witnessed the drowning death of a 13-year-old boy in 2007.

Contrary to the holding in Nacht & Lewis, the majority in Thursday's ruling held that the "weight of authority" states that written and recorded statements taken by attorneys aren't work product, but rather "classic" evidentiary material.  "They can be admitted at trial as prior inconsistent statements, prior consistent statements or past recollections recorded," Justice Betty Dawson wrote in Coito.  "Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use."  Justcie Dawson referred to the decision in Nacht & Lewis as "cursory."  "It contains no analysis to support [its] language and fails entirely to acknowledge the long line of contrary precedent," Justice Dawson wrote.  "Neither does it consider nor weigh the purposes of the work-product privilege and the Civil Discovery Act."

In dissent, Justice Stephen Kane argued that he felt witness statements recorded by attorneys constitute "qualified" work product, which remains undiscoverable unless a court determines that denial of discovery unfairly prejudices the party seeking it.  However, Justice Kane wrote that, "a per se rule of absolute protection goes too far."  Accordingly, Justice Kane would have preferred to remand the case to give the trial court judge an opportunity to consider whether discovery was warranted under the qualified work-product privilege.  "Requiring such a showing strikes a fair balance between the competing statutory policies of protecting work product and allowing liberal discovery," Kane wrote.  Justice Kane noted that the California Supreme Court, the state's highest court, has not weighed in on the issue in this case and therefore urged it to do so.  "Clarifying the scope of the work-product privilege in this context," he wrote, "is important for legal practitioners and in propria persona litigants (those representing themselves in court without assistance of an attorney, at least "on the record."  Often abbreviatd to "in pro per").

The majority, concurring and dissenting opinions all require more analysis and discussion.  However, the general rule in New York is that non-party statements are materials prepared in anticipation of litigation and therefore not subject to disclosure.  See, DeGourney v. Mulzac, 287 A.D.2d 680, 732 N.Y.S.2d 97 (2d Dep't 2001); Volpicelli v. Westchester County, 102 A.D.2d 853, 476 N.Y.S.2d 623 (2d Dep't 1984); Bush v. E. H. Cottrell, Inc., 33 A.D.2d 983, 307 N.Y.S.2d 284 (4th Dep't 1970).  The apparent rationale has been that a party should not be required to disclose that which they obtained through the investment of their own time, effort and money.  Unless these non-party witnesses have become unavailable, there is no reason why the party seeking the statements can't contact the witnesses and perform their own investigation.  If the non-party witnesses evade or refuse to cooperate, a reasonable inference can be drawn that their testimony will not be favorable to that party.  Even in the instance of evasiveness or refusal, the non-party subpoeana remains as that party's device to obtain the testimony sought.  Moreover, the subpoena on notice is arguably more just and equitable given that the adverse party has an opportunity to cross-examine the witness.