Are Witness Statements Protected by Attorney Work Product Privilege?

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Are Witness Statements Protected by Attorney Work Product Privilege?

Posted on Jun 20, 2010

Are witness statements collected at the scene of an accident or by your personal injury attorney following an accident subject to the protections of the attorney work-product privilege--a privilege which allows injury accident victims to keep these statements confidential and away from the hands of insurance companies and their lawyers?

The issue was recently tackled by the Court of Appeal for the Fifth Appellate District of California in the case of Coito v. Superior Court. The Court was asked to determine whether a statement of a witness to an accident by an attorney is protected by the work product privilege. The Court held that such statements are not protected and can be discovered by opposing counsel during discovery.

The Court distinguished the case of Nacht & Lewis Architects, Inc. v. Superior Court holding that Nacht & Lewis did not hold that a list of witnesses from whom statements had been taken, nor the statements themselves, were privileged. Such statements have very important evidentiary value, including containing inconsistent statements, prior consistent statements, or past recollections recorded--all of which would be admissible at trial. However, were these statements to be protected by the attorney work-product privilege, the opposing party could not have access to these important pieces of information and evidence.

The Court also rejected a qualified attorney work-product privilege defense--in other words that in certain circumstances and with certain limitations, the privilege would exist. The Court held that a recording or document which shows the attorney's thoughts and interpretation of the evidence and case was protected by the privilege. However, in most cases where the attorney or his representative is simply asking questions and the witness responses are simply answering those questions, then the privilege would not attach. The statement would not contain any interpretive input from the attorney. The Court also rejected the argument that the selection of the attorney's questions itself was interpretive--the statements had evidentiary value only.

What this means, for people injured in accidents in California and the insurance companies who oppose them, is that witness statements are discoverable absent an affirmative showing that the statement contains protected interpretive analysis by the attorney.

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