Imagine that it’s Friday afternoon, and your employees are anxious to wrap up business for the week. That’s when the accident happens: your employee damages an adjacent business owner’s vehicles during “routine” maintenance at your facility. His supervisor is nowhere near the incident, but six other workers witness the event.
You know a lawsuit is coming. So, you dutifully call your attorney, who investigates the situation and talks to witnesses. You are relieved that the conversations your lawyer has with the witnesses remain confidential and undiscoverable by the other side, under the long-standing “attorney work product” doctrine.
Unfortunately, the California Court of Appeal has now called into question the confidentiality of witness testimony taken by an attorney. In Coito v. Superior Court of Stanislaus County (March 4, 2010), the court held that written or recorded witness statements, including those taken by counsel, do not constitute attorney work-product, reasoning that witness testimony constitutes evidence that should be available to all parties. The court further held that even the names of witnesses interviewed by counsel are discoverable.
It is unknown whether this case will be appealed to the California Supreme Court. For now, whether you are facing an on-site accident, a wrongful termination claim, or allegations of discrimination, the warning for businesses and their attorneys is clear: be careful what you say (or ask) your witnesses – your opponent could end up with a near word-for-word transcript!