Attorney Work Product Protection Doctrine In California
The attorney-client privilege and the work product protection doctrine are both statutory creations. ( 1054.6; Code Civ. Proc., 2018; Evid. Code, 954.)
Attorney work product protection is a separate and distinct doctrine from the attorney-client privilege, and, as noted above, is codified in criminal cases to preclude evidence of an attorney's writings that reflect his or her "impressions, conclusions, opinions or legal research or theories" from being disclosed during discovery to the opponent in litigation. (Code Civ. Proc., 2018, subd. (c); Pen. Code, 1054.6; see Hickman v. Taylor (1947) 329 U.S. 495 67 S. Ct. 385, 91 L. Ed. 451.)
Thus, statements that merely reflect what a person said during an interview are not work product. (Hobbs v. Municipal Court (1991) 233 Cal. App. 3d 670 284 Cal. Rptr. 655.)
Although the attorney in such relationship is the holder of the work product protection, under certain circumstances a client may assert such doctrine on behalf of his or her attorney. (See BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal. App. 3d 1240, 1257 245 Cal. Rptr. 682.)
Section 1054.6, which is part of the new reciprocal discovery chapter enacted as part of Proposition 115, provides: "Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (c) of Section 2018 of the Code of Civil Procedure . . . ." That subdivision of Code of Civil Procedure section 2018 states:
"Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances."
However, as noted by our Supreme Court in Izazaga v. Superior Court (1991) 54 Cal. 3d 356 285 Cal. Rptr. 231, 815 P.2d 304, "section 1054.6 expressly limits the definition of 'work product' in criminal cases to 'core' work product, as provided in subdivision (c) of section 2018 of the Code of Civil Procedure.
Thus, the qualified protection of certain materials under Code of Civil Procedure section 2018, subdivision (b), applicable in civil cases which provides that the work product of an attorney is nondiscoverable unless the court determines the denial of discovery will unfairly prejudice the party seeking discovery or will result in an injustice, is no longer available in criminal cases.
The more recent statute limiting the definition of work product in criminal cases carves out an exception to the older work product rule applicable to civil and criminal cases alike." (Id. at p. 382, fn. 19.)
Moreover, this provision of the criminal statutory discovery scheme does not apply to discovery from third parties. (People v. Superior Court (Broderick) (1991) 231 Cal. App. 3d 584, 594 282 Cal. Rptr. 418.)
While it is generally recognized that a public entity, similar to a corporation, has the right to assert the attorney-client privilege (Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 370 20 Cal. Rptr. 2d 330, 853 P.2d 496; D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal. 2d 723, 733 36 Cal. Rptr. 468, 388 P.2d 700; Vela v. Superior Court, supra, 208 Cal. App. 3d at p. 150), the right of an individual public prosecutor to do so is limited due to the nature of his or her position.
Like an individual officer or employee of a corporation, "where the employee's connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation's business, the public prosecutor is no longer an independent witness, and his or her statement or report is that of the DA employer." (D. I. Chadbourne, Inc. v. Superior Court, supra, at p. 737; see also Gonzales v. Municipal Court (1977) 67 Cal. App. 3d 111, 117-121 136 Cal. Rptr. 475.)