California Landmark Cases on the Work Product Doctrine
Work Product Law:
The notion that the work product of an attorney should at times be protected from discovery was first recognized in the landmark case of Hickman v. Taylor (1947) 329 U.S. 495, which established in the federal courts "a qualified privilege for certain materials prepared by an attorney acting for his client in anticipation of litigation." (2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1389.)
As explained in Hickman:
"Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways--aptly though roughly termed by the Circuit Court of Appeals in this case as the 'work product of the lawyer.' Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." (Hickman, supra, at pp. 510-511.)
The Hickman court affirmed the judgment of the court of appeals, which held that witness statements obtained by an attorney were privileged as " 'work product of the lawyer.' " (Id. at pp. 500, 511.)
In 1963, in response to decisions by our Supreme Court that the work product doctrine did not apply as a privilege under California law (see Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 399-401 (Greyhound); Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177, 178 23 Cal.Rptr. 368, 373 P.2d 432), the Legislature adopted an amendment to the Civil Discovery Act (now 2016.010 et seq.; hereafter the Discovery Act) as proposed by the California State Bar for the purpose of protecting attorney work product. (Dowden v. Superior Court, supra, 73 Cal.App.4th at pp. 132-133 summarizing legislative history.)
The State Bar report submitted to the Legislature stated that the amendment was necessary "to '... protect the lawyer's normal work processes ... and to establish a more desirable balance between "discovery" and the right of litigants and prospective litigants to obtain advice of experts, make investigations and do other acts, without fear of unlimited or indiscriminate disclosures to, and use by adversaries.' " (Ibid., quoting Com. Rep. on Admin. of Justice (1962) 37 State Bar J. 585, 586.)
The report "expressed concern over litigants, as well as of attorneys, having unrestrained access by their opponents to materials prepared in anticipation of litigation." (Dowden v. Superior Court, supra, at p. 133 noting that the State Bar's report "may be used as an interpretive aid" to the legislation.)
These goals, including that each attorney should have sufficient privacy to make an investigation of his or her own client's case without risk of indiscriminate disclosure to the other side as well as the reasonable protection of the attorney's industry from those who would attempt to ride free thereon, are best achieved by treating attorney-recorded witness statements as qualified work product.
The work product doctrine as codified in California reflects the same important policy concerns.
Section 2018.020 states that it is "the policy of the state to do both of the following:
(a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.
(b) Prevent attorneys from taking undue advantage of their adversary's industry and efforts." These policy goals are implemented by the provisions of section 2018.030. Subdivision (a) of section 2018.030 states:
"A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances." This is known as the absolute work product privilege. (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 649-650.)
All other work product is protected by the qualified privilege as provided in subdivision (b) of section 2018.030, which states:
"The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice." If discovery is sought of matters coming within the qualified privilege, the court balances the need for disclosure against the purpose served by the work product doctrine. (National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476, 490.)
"The effect of the work product rule may be summarized by noting that it creates in California a qualified privilege against discovery of a general work product and an absolute privilege against disclosure of documents containing the attorney's 'impressions, conclusions, opinions, or legal theories.' While the lawyer-client privilege is prompted by the need for confidentiality of the client, the work product rule is designed to satisfy the attorney's requirement for privacy." (American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 594.)
As reflected in the policy goals of the work product statute and its legislative history, such privacy is needed so that an attorney may thoroughly investigate the favorable and unfavorable aspects of a case (see 2018.020, subd. (a)) " 'without fear of ... indiscriminate disclosures to, and use by adversaries' " (Dowden v. Superior Court, supra, 73 Cal.App.4th at pp. 132-133, quoting Com. Rep. on Admin. of Justice, supra, 37 State Bar J. at p. 586), and to prevent a lazy practitioner from taking undue advantage of an adversary's industry and trial preparation ( 2018.020, subd. (b); Dowden v. Superior Court, supra, at p. 133).