Witness statements obtained through an attorney-directed interview are entitled to at least qualified work product protection. Coito v. Superior Court. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it reflects an attorney’s impressions, conclusions, opinions, or legal research or theories, that party must make a preliminary or foundational showing in support of its claim. The trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material.
Form interrogatory No. 12.3, asks: “Have YOU OR ANYONE ACTING ON YOUR BEHALF obtained a written or recorded statement from any individual concerning the INCIDENT?” For any such statement, the interrogatory requests (among other things) the name, address, and telephone number of the witness and the date the statement was obtained.
It is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases. Therefore, information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege: the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney’s tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute. A trial court may also have to consider non-party witnesses’ privacy concerns.