Chapter 4 - §5. Work-product privilege

• Jurisdiction: United States

§5. Work-product privilege

§5.1. Overview. In criminal cases, an attorney or a party appearing in propria persona generally has an absolute privilege to refuse to disclose, and to prevent another person from disclosing, core work product—that is, any writing that reflects the attorney's impressions, conclusions, opinions, legal research, or legal theories. See CCP §2018.030(a); Pen. C. §1054.6; People v. Miles (2020) 9 Cal.5th 513, 590; People v. Caro (2019) 7 Cal.5th 463, 487; Dowden v. Superior Ct. (4th Dist.1999) 73 Cal.App.4th 126, 136. Core work product includes materials compiled by investigators and other agents in preparation for trial. People v. Superior Ct. (Jones) (4th Dist.2019) 34 Cal.App.5th 75, 80-81, judgment aff'd and remanded sub nom, People v. Superior Ct. of San Diego Cty. (2021) 12 Cal.5th 348. In addition, an attorney's investigative knowledge is protected from discovery as core work product. See People v. Landers (1st Dist.2019) 31 Cal.App.5th 288, 323-24. The work-product privilege in criminal cases is limited to this core work product and thus is narrower than the protection provided in civil cases. See Pen. C. §1054.6; People v. Bennett (2009) 45 Cal.4th 577, 595; Izazaga v. Superior Ct. (1991) 54 Cal.3d 356, 382 n.19. The weaker form of protection, characterized as the qualified work-product privilege and codified under CCP §2018.030(b), is not available in a criminal-law case or proceeding. Landers, 31 Cal.App.5th at 310 n.14. The privilege serves two purposes. First, it allows attorneys to prepare for trial thoroughly and to investigate both favorable and unfavorable aspects of their case without fear that this information will be disclosed. CCP §2018.020(a); Miles, 9 Cal.5th at 590-91; Coito v. Superior Ct. (2012) 54 Cal.4th 480, 492; Curtis v. Superior Ct. (2d Dist.2021) 62 Cal.App.5th 453, 469. Second, it ensures that one attorney cannot take undue advantage of another attorney's industry or effort. CCP §2018.020(b); Miles, 9 Cal.5th at 590-91; Coito, 54 Cal.4th at 492; Curtis, 62 Cal.App.5th at 469.

Note
The work-product privilege extends to both attorneys and parties appearing in propria persona. See Dowden, 73 Cal.App.4th at 136. For ease of reference in this discussion, the term "attorney" will be used to include both.

§5.2. Elements of work-product privilege. For the work-product privilege to apply, the following requirements must be met:

1. In writing. The material at issue must be a writing. CCP §2018.030(a); see Pen. C. §1054.6. While the broader work-product privilege applicable in civil cases can protect a party from the opposing party's questions to, and answers by, witnesses that could invade an attorney's thought processes, impressions, opinions, legal theories, research, or conclusions, the restriction of the privilege to writings in Pen. C. §1054.6 removed this protection in criminal cases. See People v. Zamudio (2008) 43 Cal.4th 327, 355-56; People v. Superior Ct. (Jones) (4th Dist.2019) 34 Cal.App.5th 75, 80, judgment aff'd and remanded sub nom, People v. Superior Ct. of San Diego Cty. (2021) 12 Cal.5th 348. Under Pen. C. §1054.6, the privilege is implicated only if the prosecution's questions or witness's statements elicit or attempt to elicit evidence of a writing. See, e.g., People v. Scott (2011) 52 Cal.4th 452, 489 (testimony by prosecution witness that bullet taken from scene was provided to D's expert did not violate privilege because questions did not elicit or attempt to elicit evidence of writing); People v. Bennett (2009) 45 Cal.4th 577, 595 (questions by prosecution to witness about availability of DNA samples to D's experts did not violate privilege because questions did not elicit or attempt to elicit evidence of writing).

2. Related to legal work. The written material must be related to legal work performed for a client; the work-product privilege does not apply to work done in a nonlegal capacity. E.g., Watt Indus. v. Superior Ct. (1st Dist.1981) 115 Cal.App.3d 802, 805 (no work-product privilege when attorney was acting as mere business agent). If it is unclear whether the work is legal or nonlegal, the dominant purpose for creating the work determines its character. 2,022 Ranch, L.L.C. v. Superior Ct. (4th Dist.2003) 113 Cal.App.4th 1377, 1390-91, disapproved on other grounds, Costco Wholesale Corp. v. Superior Ct. (2009) 47 Cal.4th 725. If the dominant purpose is to give a legal opinion or advice, the work will be considered legal work. See Aetna Cas. & Sur. Co. v. Superior Ct. (1st Dist.1984) 153 Cal.App.3d 467, 475-76. It is not necessary that the work be done in anticipation of litigation; the privilege also applies to work done by an attorney in his role as a counselor. Labor & Workforce Dev. Agency v. Superior Ct. (3d Dist.2018) 19 Cal.App.5th 12...