Discovery is a process used in most legal proceedings. This process allows the attorneys for the parties to receive copies of documents the other side has in their possession or control or to obtain statements given under oath. The process can include a variety of different tools, including depositions, interrogatories, requests for admissions, or requests for production of documents. While depositions may be used against other parties as well as witnesses, interrogatories and other written requests for discovery may only be served upon the opposing party. These written instruments may request disclosure of medical history, company policy, copies of disciplinary write-ups or any other document or statement, as long as the request is reasonably designed to lead to admissible evidence. In the event of a workers’ compensation claim, it is not uncommon for an employee’s attorney to demand copies of witness statements that are in the employer’s possession. These witness statements are sometimes discoverable, but can sometimes be protected, at least for a time.
An attorney can sometimes claim work product privilege to protect any witness statements from the other side. In order for this to apply, the statement needs to have been taken by the attorney, at the attorney’s own behest. For the witness statement to unconditionally apply, meaning that the statement never would have to be produced, the statement would have to be somehow inextricably linked to the attorney’s own statements that reveal impressions and feelings about the witness and the statement he or she was making. In some situations, recorded statements made by the attorney or at the attorney’s direction could also be protected.
It is up to the party claiming that the witness statement is privileged to make the showing to the court or other tribunal that the witness statement falls under the work product exception in order to invoke this privilege. It does not simply apply automatically.
If a witness or other person creates his own document or statement and sends it to the attorney, the privilege does not apply. The attorney’s simple possession of the document does not automatically make it into the attorney’s work-product, subject to the privilege. The California Supreme Court has also determined that a list of witnesses made by the attorney is likewise not subject to the privilege.
The area of discovery is broad and complex. To discuss how to make sure your witness statements are protected before your case starts, contact me at (714) 516-8188 or email [email protected]. I will be happy to talk with you about your business and how to set up a plan to make sure any statements or documents are protected.