California courts have been wrestling with the definition and application of “attorney work-product” since it was created by statute in 1963. One of the most persistent and controversial issues has been the application of attorney work-product protection to written or recorded witness statements taken by attorneys. Particularly difficult has been the issue of whether an attorney’s decision to interview a specific witness, and the choice of questions asked during the interview, reflects the attorney’s reasoning, opinions or theories about a case and so qualify for protection as work-product.
Over the last 40 years, different courts have addressed the issue in different ways. The basis for a number of decisions has been the perceived distinction between statements that are “evidentiary” rather than “interpretive” or “derivative.” A commonly used example of an “evidentiary” witness statement is one created and voluntarily provided to counsel by a witness, and courts have had little trouble finding that such a statement would not constitute “attorney work-product.”
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