Opinion
H048900
10-13-2021
A.S., Petitioner, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY Respondent A.S., Real Party in Interest.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 19FL004724
ELIA, ACTING P.J.After the commencement of marital dissolution proceedings, petitioner A.S. (mother) alleged that real party in interest A.S. (father) had sexually abused one of the parties' daughters, M.S. Mother's counsel arranged for a private investigator to interview M.S., who was four years old at the time, over the course of three days. Father eventually learned of the interview and that a recording had been made of at least part of it, and he moved to compel production of any recording or transcript of the interview. The trial court granted the motion and directed mother to provide copies of the interview recording to father, the child custody evaluator, and the attorney representing the two children (minors' counsel).
Rule 8.90(b) of the California Rules of Court directs us to “consider referring to” certain individuals “by first name and last initial, or, if the first name is unusual or other circumstances would defeat the objection of anonymity, by initials only, ” in order to protect those individuals' privacy. (Cal. Rules of Court, rule 8.90(b).) Mother and father share the same initials.
Mother petitions this court for a writ of mandate requiring the trial court to vacate that order. She contends that the attorney work product doctrine precludes disclosure of the interview recording. Father maintains that the recording of the interview of M.S. is discoverable. Minors' counsel agrees that the interview recording should be disclosed as “it is in the best interest of the children” to do so. We conclude that mother made a foundational showing that the interview recording was subject to absolute work product protection. Because of that, the superior court erred by not inspecting the interview recording to determine whether any portion of the recording was in fact absolutely protected. Accordingly, we will issue a writ of mandate directing the superior court to conduct an in camera inspection at which it shall consider whether absolute work product protection applies to any portion of the interview recording.
I. Background
In December 2019, father filed a petition for dissolution of marriage based on “irreconcilable differences.” The petition sought joint custody of the parties' two minor children, M.S. (four years old) and R.S. (16 months old). In February 2020, father and mother stipulated to joint legal and physical custody of the two children, and agreed that father would move out of their apartment into another nearby apartment in the same complex.
On June 2, 2020, according to mother, M.S. disclosed that father sometimes touched her vaginal area. Mother told M.S.'s pediatrician, who called Child Protective Services (CPS). An investigation ensued. CPS determined that the report of abuse was “ ‘unfounded,' ” and the Santa Clara District Attorney's Office declined to prosecute.
Mother made additional allegations, which we do not recount as they are not relevant to the narrow issue presented in this writ petition.
Mother maintains that CPS should have characterized the determination as “inconclusive” rather than “unfounded” “because there was conflicting information and they could not absolutely rule out the possibility of abuse.”
Mother sought an ex parte domestic violence restraining order based on the allegations of abuse. The court denied the application for a temporary restraining order and continued the matter for a hearing.
On June 17, 2020, because he had not seen his children since June 3, father filed an application with the trial court requesting an order for joint custody and visitation in accordance with the parties' February 2020 agreement, or, alternatively, supervised visitation based on a schedule determined by the court.
A hearing on mother's request for a domestic violence restraining order and father's request for a custody order was held on July 6, 2020. After the hearing, the trial court entered an order that the parties participate in an emergency screening on July 15, 2020. The court also ordered that father would have 10 hours a week of supervised visitation with M.S. and R.S. The request for a domestic violence restraining order was continued to a later date.
On July 28, 2020, the court appointed counsel to represent M.S. and R.S. in connection with the custody trial. The appointment order provided counsel “shall have a reasonable right to meet and communicate with the children” and “has the right to reasonable written advance notice of and the right to refuse any examination or evaluation of the children... which have not been ordered by the Court.”
On September 16, 2020, minors' counsel filed a position statement with the trial court requesting that the court prohibit any further contact between the children and father. Minors' counsel cited supervision reports from recent supervised visits, noting: “Father's inability to follow supervision rules, combined with his inability to refrain from inappropriate touching of his daughters even while supervised, alarms me and should alarm the Court.” Minors' counsel asked the court to grant mother “sole legal and sole physical custody of the minor children” and to order father to have “no contact with the minor children” and to “stay 300 yards away” from the children's school and residence.
Following a hearing on September 29, 2020, the trial court ordered that father have no contact with the minor children and that he stay away from the children's school and residence. The court also ordered a full custody evaluation pursuant to Family Code sections 3111 and 3118, and ordered the parties to meet and confer to select a custody evaluator. Dr. John Orlando was selected as evaluator, and he was tasked with determining, among other things, “[w]hether there is evidence to support a finding that [father] sexually abused child/children or that [mother] made false allegations of same.”
Discovery in the case was also ongoing. On August 11, 2020, father had served mother with a demand for production of documents, including all “audio recordings” and “video recordings” that mother or anyone acting on her behalf made of the children. On October 9, 2020, mother responded to the request for video recordings by objecting that the request was irrelevant and overbroad, and that it asked for attorney work product. On January 8, 2021, mother's counsel sent an email to father's counsel that included a privilege log, which disclosed that mother was withholding a “recorded interview of [M.S.] by my investigator.” The stated objection was based on “[a]bsolute [w]ork [p]roduct... as it will reveal the attorney's impressions, conclusions, opinions and theories.”
Father's counsel replied that she had no previous knowledge of the interview: “It has just come to my attention that you had your investigator interview [M.S.]. This is entirely inappropriate. [¶] I request that you provide the following: 1) the date(s) of the interview; 2) the name of the interviewer; and 3) a copy of the interview. [¶] If we don't receive the requested information and a copy of the interview by end of this week 1/29/21, we will be filing a motion to compel with a request for an order shortening time and sanctions.”
Mother's counsel declined to produce the interview or allow the investigator to be interviewed. Counsel eventually shared details about the interview. Mother's counsel had retained “Pamela Lawson, ” who was described as “a highly experienced retired child abuse investigator....” Lawson “teaches child abuse investigation for law enforcement and social services, including interviewing children. She has investigated hundreds of child molestation cases, frequently testified as an expert on dynamics of abuse... and recently assisted in rewriting” a child abuse training manual used by law enforcement. Lawson met with M.S. on June 30, July 1, and July 2, 2020. Counsel averred that “there was only one formal interview” on one day, which was recorded, and “the two other times were [an] opportunity to develop some rapport with the child.”
In a declaration, mother's counsel indicated that he had instructed Lawson to meet with M.S. and “specifically directed the investigator to ask specific questions that related to, and would address, my concerns about this case testing my impressions, conclusions, opinions, legal research, and theories concerning my duty to investigate the merits of the case, possible defenses, and outcomes by this Court given the responses from the child.” Counsel explained that “[h]ad I not conducted an investigation into the facts of the case, I would have no way of knowing what legal positions to take in this matter given that the criminal aspects of the case... (those sex offenses alleged of Father and possible false reporting [by mother]) have great consequences for either party should a court find one way or the other.”
Father filed a motion to compel production of the recording. On February 18, 2020, the trial court held a hearing on the motion. Father's counsel contended that the interview recording should be disclosed and was not protected by attorney work product protection. Counsel further argued that even if the court found that “there is work product protection, the Court can find that there is prejudice to my client and compel production.” The court asked mother's counsel, “[Y]our position is that [the recording] shouldn't be turned over to [father] because they're work product?” Mother's counsel replied, “Under the Supreme Court decision that we cited, yes, your Honor.” He elaborated that it was “protected based on the specifics that I... instructed that investigator to make inquiry into. Because it will... reveal our position both of our research, my opinions....” After counsel finished, the court concluded that it would order the interview recording disclosed to minors' counsel, the custody evaluator, and father. Mother was given until March 4, 2021, at 4:00 p.m. to produce the recording.
On March 2, 2021, mother filed a petition for writ of mandate in this court and requested a stay of the discovery order. This court summarily denied the writ petition and stay request. Mother filed a petition for review and requested an immediate stay in the Supreme Court on March 5, 2021. The Supreme Court granted a stay of the trial court's order. After briefing, the Court granted the petition for review and transferred the matter back to this court with directions to vacate this court's order denying the petition for writ of mandate and to issue an order directing respondent Superior Court of Santa Clara County to show cause why the relief sought in the petition should not be granted. This court issued an order to show cause on April 22, 2021.
II. Discussion
A. Legal Background
“The appellate court may entertain a petition for extraordinary relief when compulsion to answer a discovery order would violate a privilege. [Citation.] The discovery order may be prohibited where it is wholly invalid and where, under the circumstances, it constitutes an abuse of the lower court's discretion. [Citation.]” (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1249.) An abuse of discretion also occurs if the court applies an erroneous legal standard or its factual findings are not supported by substantial evidence. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733.)
“[A]n attorney's work product is protected by statute.” (Coito v. Superior Court (2012) 54 Cal.4th 480, 485 (Coito).) “Absolute protection is afforded to writings that reflect ‘an attorney's impressions, conclusions, opinions, or legal research or theories.' ([Code Civ. Proc., ] § 2018.030, subd. (a).) All other work product receives qualified protection; such material ‘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.' ([Id.] § 2018.030, subd. (b).)” (Ibid.)
“The language of [Code of Civil Procedure] section 2018.030[, ] does not otherwise define or describe ‘work product.' Courts have resolved whether particular materials constitute work product on a case-by-case basis.” (Coito, supra, 54 Cal.4th at p. 488.) “[W]itness statements procured by an attorney are not automatically entitled as a matter of law to absolute work product protection.” (Id. at p. 495.) Rather, “[a]n attorney resisting discovery of a witness statement based on absolute privilege must make a preliminary or foundational showing that disclosure would reveal his or her ‘impressions, conclusions, opinions, or legal research or theories.' [Citation.] Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” (Id. at pp. 495-496.)
Even if absolute work product protection does not apply, “witness statements procured by an attorney are entitled as a matter of law to at least qualified work product protection under [Code Civ. Proc., ] section 2018.030, subdivision (b).” (Coito, supra, 54 Cal.4th at p. 496.) In such cases, “[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.” (Id. at p. 499.)
In Coito, the Supreme Court considered what level of work product protection should be afforded to witness interviews conducted by investigators and lists of witnesses from whom written or recorded statements had been taken. (Coito, supra, 54 Cal.4th at pp. 494-499.) With respect to witness interviews, the court observed that “in some instances” such interviews may be absolutely protected, such as “when the questions that the attorney has chosen to ask (or not ask) provide a window into the attorney's theory of the case or the attorney's evaluation of what issues are most important.” (Id. at p. 495.) This is because “[l]ines of inquiry that an attorney chooses to pursue through followup questions may be especially revealing.” (Ibid.) “In such situations, redaction of the attorney's questions may sometimes be appropriate and sufficient to protect privileged material.” (Ibid.) The court also observed that, “in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses.” (Ibid.) Conversely, quoting the Court of Appeal, the court posited an inverse scenario: “ ‘What... of the situation in which an attorney sends an investigator to interview all witnesses listed in a police report, and the investigator asks few if any questions while taking the witnesses statements? Clearly, these statements would reveal nothing significant about the attorney's impressions, conclusions, or opinions about the case.' ” (Ibid.)
The court determined that after the party resisting discovery makes a foundational showing that the material is absolutely protected, “[t]he trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material.” (Coito, supra, 54 Cal.4th at p. 500.) The court “remand[ed] the matter for consideration of whether absolute privilege applies to all or part of the recorded witness interviews, ” and “whether [the party seeking disclosure] can make a sufficient showing of unfair prejudice or injustice under [Code Civ. Proc., ] section 2018.030, subdivision (b) to permit discovery.” (Ibid.)
B. Analysis
In this case, the trial court ordered the disclosure of the entire recording of the interview, notwithstanding the assertion of absolute work product protection. The court did so without first conducting an in camera inspection of the interview recording. We conclude that this was an abuse of discretion.
In response to the motion to compel production, mother's counsel asserted that he “directed the investigator to ask specific questions [about this case] that related to, and would address, my concerns about this case testing my impressions, conclusions, opinions, legal research, and theories concerning my duty to investigate the merits of the case, possible defenses and outcomes by this Court given the responses from the child.” At the hearing, counsel emphasized that he “instructed th[e] investigator to make [an] inquiry” into specified matters. At a minimum, these assertions raise the possibility that some portion of the recorded interview may reveal absolutely protected attorney work product. In our view, mother's counsel made “a preliminary or foundational showing that disclosure would reveal [counsel's] ‘impressions, conclusions, opinions, or legal research or theories.' ” (Coito, supra, 54 Cal.4th at pp. 495-496.) Because of that, the trial court had an obligation to “make an in camera inspection to determine whether absolute work product protection applies to some or all of the material.” (Id. at p. 500.)
At oral argument, father contended that it was mother's counsel's responsibility to request an in camera review and by not doing so, he “forfeited” the opportunity for one to be held. We find this argument unconvincing. It is an attorney's responsibility to make a foundational showing of attorney work product protection. “Upon an adequate showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute work product protection applies to some or all of the material.” (Coito, supra, 54 Cal.4th at p. 496, italics added.) Although mother's attorney did argue before the trial court that absolute work product protection was so unequivocally established that “an in camera review [was] not necessary, ” this argument did not amount to a refusal to make the interview available for an in camera inspection, and it did not preclude the trial court from actually conducting such a review.
Our conclusion that mother's counsel made an adequate foundational showing of absolute work product protection should not be misconstrued to suggest that any part of the interview recording will ultimately prove to be absolutely protected. Rather, we determine only that the trial court did not follow the proper procedure for evaluating a claim of absolute work product protection, as outlined by our high court in Coito.
If after making an in camera inspection, the trial court determines that only a qualified work product protection applies to part or all of the interview recording, the parties seeking disclosure would need to demonstrate that unfair prejudice or an injustice will result from withholding the interview recording. (Coito, supra, 54 Cal.4th at p. 499.) In that regard, In re Tabatha G. (1996) 45 Cal.App.4th 1159 (Tabatha G.), which involved a juvenile dependency matter, is instructive.
In Tabatha G., the mother arranged for the child to be interviewed for a “bonding study” without the knowledge of the Department of Social Services or the foster parents. (Tabatha G., supra, 45 Cal.App.4th at p. 1166.) The Department later sought discovery of the study. The mother opposed the request on various grounds including that the bonding study constituted attorney work product. The trial court found that it was in the child's best interest to release the bonding study and that it would be an injustice if it were not released. (Ibid.)
On appeal, the Court of Appeal found that the trial court properly ordered discovery of the bonding study. The court first determined that the child would benefit from its release. “Both [the] Department and [the child's] counsel were entitled to the information contained in the report in order to adequately evaluate their positions and present their sides of the case.” (Tabatha G., supra, 45 Cal.App.4th at p. 1167.) The court also determined that precluding discovery of the bonding study “would have resulted in an injustice, ” and therefore qualified work product protection had been overcome. (Ibid.) The court noted that it “was [the child] who was the subject of the bonding study and certainly her counsel was entitled to that information in the first instance. Avoiding discovery of the bonding study by requiring [the child] to undergo another one... would have subjected [the child] to unnecessary inconvenience and potential trauma, contrary to her best interests.” (Id. at pp. 1167-1168.) The court also observed that another bonding study would have delayed the proceedings further, “in contravention of the Legislature's mandate for the expeditious handling of juvenile matters.” (Id. at p. 1168.)
We find the reasoning in Tabatha G. persuasive and, should the trial court find qualified work product protection applies, potentially applicable to the facts of this case. We will direct the trial court to consider in camera whether absolute or qualified work product protection applies to any part of the recorded interview of M.S.
III. Disposition
Let a preemptory writ of mandate issue directing respondent superior court to vacate its order granting real party in interest's motion to compel discovery. The court is directed to undertake an in camera inspection of the recorded interview to determine whether any portion of it is absolutely protected. If any part of the interview is not absolutely protected, the court should determine whether the parties seeking discovery “can make a sufficient showing of unfair prejudice or injustice under [Code of Civil Procedure] section 2018.030, subdivision (b) to permit discovery.” (Coito, supra, 54 Cal.4th at p. 500.)
WE CONCUR: BAMATTRE-MANOUKIAN, J., DANNER, J.