Date: 10-03-2019

Case Style:

Case Number: B297595

Judge: Manella, P.J.

Court: California Court of Appeals Second Appellate District, Division Four on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Susan Garvey, Paula Fog, and Gillian F. Quandt

Defendant's Attorney: Jackie Lacey, Phyllis C. Asayama and Matthew Brown

Description: Petitioner Samuel Zamudio Jimenez, a death-row
inmate, seeks a writ of mandate to vacate the superior
court’s discovery order in this habeas corpus proceeding. In
his petition for a writ of habeas corpus, petitioner claimed
the jury at his capital trial impermissibly considered the
opinion of at least one alternate juror in deciding his guilt.
The Supreme Court issued an order to show cause on this
claim in the respondent superior court. On the district
attorney’s motion on behalf of real party in interest, the
superior court subsequently ordered petitioner to produce
the statements of any alternate jurors he had interviewed.
In his petition for a writ of mandate, petitioner argues
the court abused its discretion in ordering this discovery. He
claims the superior court was required to limit discovery to
the scope of the criminal discovery statutes, which do not
authorize the discovery sought here. Alternatively, he
maintains the discovery order violates the qualified attorney
work-product protection. In response, the district attorney
argues the criminal discovery statutes do not constrain the
superior court, and extends the qualified work-product
3
protection is unavailable in habeas proceedings. She also
asserts that even if generally applicable, the work-product
protection would not preclude the superior court’s order.
We agree with the district attorney that discovery in
habeas proceedings following an order to show cause may
exceed the scope of the criminal discovery scheme. However,
we hold that the qualified work-product protection applies to
discovery beyond that scope and -- at this juncture of the
proceedings -- precludes the superior court’s discovery order.
We therefore grant petitioner’s requested relief.
BACKGROUND
In 1997, a jury convicted petitioner of two counts of
first degree murder, among other offenses, and found true
multiple special circumstance allegations. The court
imposed a death sentence. Following trial, the court sealed
the jurors’ identifying information and prohibited the parties
from contacting them without authorization. On automatic
appeal, the California Supreme Court affirmed petitioner’s
convictions and sentence. (People v. Zamudio (2008) 43
Cal.4th 327, 333-334.)1
In 2010, petitioner filed an amended petition for a writ
of habeas corpus, alleging, inter alia, juror misconduct
1 The Supreme Court’s opinion showed petitioner’s name as
“Samuel Zamudio” based on the information filed in the trial
court; according to his habeas corpus petition, petitioner’s true
name is Samuel Zamudio Jimenez. (In re Zamudio Jimenez
(2010) 50 Cal.4th 951, 954, fn. 3.)
4
during the guilt-phase deliberations. He claimed the jurors
improperly considered the opinion of at least one alternate
juror during their deliberations. Attached to his petition
was the declaration of E.P., an alternate juror at petitioner’s
trial, stating that E.P. sat with the jurors during
deliberations, that the jurors asked for her opinion on
petitioner’s guilt, and that E.P. replied she agreed he was
guilty. In March 2018, the California Supreme Court
ordered the People to show cause in the superior court why
relief should not be granted on petitioner’s claim of juror
misconduct.
The district attorney filed a petition in the superior
court requesting that before real party’s return was due, the
court contact the 11 surviving seated jurors (one had passed
away) and the alternates by letter to ask if they were willing
to speak with the parties’ counsel. At a subsequent hearing,
the court agreed to this request. During the hearing, the
parties agreed that if any juror consented to speak to one
party, that party would provide the juror’s statement to the
other. The district attorney asked that this disclosure
requirement apply to any statements petitioner might
previously have obtained from any jurors, seated or
alternates, though petitioner represented his current counsel
had interviewed no seated jurors.2 The court indicated it
2 Petitioner has not indicated, either in the superior court or
before us, whether his counsel interviewed any alternate jurors
other than E.P.
5
was inclined to order the discovery the district attorney had
requested, but allowed petitioner to brief the issue.
Petitioner filed a brief opposing the requested
discovery. He noted the criminal discovery statute
applicable to defendants’ pretrial disclosures, Penal Code
section 1054.3, requires defendants to disclose the
statements of only those witnesses they intend to call at
trial.
3 Petitioner maintained section 1054.3 delineated the
extent of the court’s authority to order discovery of witness
statements. He further argued the court’s order was
unauthorized under the civil discovery scheme, as it would
require disclosure of his counsel’s qualified work product.
After considering petitioner’s opposition, the court ordered
petitioner “to provide all statements [his counsel had]
obtained from the alternate jurors about whether or not they
participated in jury deliberations . . . .”
3 Penal Code section 1054.3, subdivision (a) requires a
criminal defendant to disclose to the prosecuting attorney:
“(1) The names and addresses of persons, other than the
defendant, he or she intends to call as witnesses at trial, together
with any relevant written or recorded statements of those
persons, or reports of the statements of those persons, including
any reports or statements of experts made in connection with the
case, and including the results of physical or mental
examinations, scientific tests, experiments, or comparisons which
the defendant intends to offer in evidence at the trial.
“(2) Any real evidence which the defendant intends to offer in
evidence at the trial.” Undesignated statutory references are to
the Penal Code.
6
Petitioner filed this petition for a writ of mandate
seeking relief from the superior court’s discovery order. We
issued an order to show cause why that ruling should not be
vacated.
DISCUSSION
We review a trial court’s discovery order for abuse of
discretion. (Union Bank of California v. Superior Court
(2005) 130 Cal.App.4th 378, 388.) “However, when ‘the
propriety of a discovery order turns on . . . a question of law,’
we ‘determine the issue de novo.’” (City of Los Angeles v.
Superior Court (2017) 9 Cal.App.5th 272, 282, quoting
Gilbert v. Superior Court (2014) 224 Cal.App.4th 376, 380.)
Petitioner claims the superior court should have
limited its discovery order to the scope of the criminal
discovery scheme. Alternatively, he asserts the court’s
discovery order violates the qualified attorney work-product
protection. The district attorney maintains that neither the
criminal discovery scheme nor the qualified work-product
protection constrains discovery in habeas proceedings. She
also argues that even if generally applicable, the workproduct
protection would not preclude the superior court’s
order. We discuss the parties’ contentions in turn, beginning
with the general scope of discovery in habeas corpus
proceedings following an order to show cause.
7
A. The Scope of Discovery Following an Order to Show
Cause in Habeas Corpus Proceedings
Generally, court-ordered discovery is unavailable in
habeas corpus proceedings “unless and until a court issues
an order to show cause.” (People v. Superior Court (Morales)
(2017) 2 Cal.5th 523, 528.) But once an order to show cause
has issued, courts have discretion to order discovery as to
issues on which the petition has stated a prima facie case.
(See In re Scott (2003) 29 Cal.4th 783, 815 (Scott) [discovery
order following order to show cause was not abuse of
discretion]; Board of Prison Terms v. Superior Court (2005)
130 Cal.App.4th 1212, 1243 [discovery following order to
show cause “must be relevant to the issues upon which the
petition states a prima facie case for relief”].) Such discovery
may include disclosures by the People and the petitioner.
4
(Scott, at p. 814.)
4 Section 1054.9, added to the Penal Code in 2003, affords
convicted defendants in certain categories of cases, and under
certain conditions, a right to limited discovery “upon the
prosecution of a postconviction writ of habeas corpus . . . or in
preparation to file that writ . . . .” (§ 1054.9, subd. (a).) Discovery
under this provision includes only “materials to which the
defendant would have been entitled at the time of trial . . . .” (In
re Steele (2004) 32 Cal.4th 682, 695.) Section 1054.9 thus does
not authorize discovery of evidence generated or uncovered after
trial, such as new expert reports and new witness statements,
which may be most relevant to the habeas proceeding. Indeed,
our Supreme Court has stated the criminal discovery provisions,
which are similar in scope to section 1054.9, “are a bad fit for
(Fn. is continued on the next page.)
8
The precise nature and scope of discovery following an
order to show cause “has generally been resolved on a caseby-case
basis.” (Scott, supra, 29 Cal.4th at p. 813.) Habeas
corpus “is a special proceeding and not entirely analogous to
either [civil or criminal proceedings].” (Id. at p. 815, fn. 7.)
Thus, the statutory provisions governing discovery in
criminal trials do not apply to habeas corpus matters (id. at
p. 813), “although they may provide guidance in crafting
discovery orders on habeas corpus” (Pearson, supra, 48
Cal.4th at p. 572). Nor has our Supreme Court indicated
that the civil discovery scheme governs discovery in habeas
proceedings. Instead, the Court has tasked trial courts with
“fashion[ing] a fair discovery rule.” (Scott, at p. 814.)
habeas corpus” because the issues raised on habeas “may or may
not relate to any of the evidence presented or not presented in the
underlying criminal trial.” (People v. Superior Court (Pearson)
(2010) 48 Cal.4th 564, 572 (Pearson).) Nor does section 1054.9
authorize reciprocal discovery by the People.
Neither party argues section 1054.9 limits courts’ power to
order discovery following an order to show cause, and we
conclude it does not. Affording defendants limited discovery as of
right does not imply a rejection of the courts’ discretion to order
more extensive discovery following an order to show cause. (Cf.
In re Bryce C. (1995) 12 Cal.4th 226, 233 [statute affording
indigent appellants right to appointed counsel in certain appeals
did not negate courts’ discretion to appoint counsel for indigent
respondents in similar appeals].) And we do not believe the
Legislature intended to deny parties access to information that
may be most relevant to the proceeding.
9
In Scott, the California Supreme Court appointed a
referee to take evidence and decide factual questions in a
capital habeas corpus proceeding. (Scott, supra, 29 Cal.4th
at p. 792.) On the Attorney General’s motion, the referee
ordered the petitioner to provide certain discovery, including
“[a]ll discovery allowed under Penal Code section 1054.3,”
which governs criminal defendants’ pretrial disclosure
obligations. (Scott, supra, at p. 812.) Challenging this ruling
in the Supreme Court, the petitioner argued that section
1054.3, enacted in 1990 as part of the reciprocal discovery
provisions of Proposition 115 (the Crime Victims Justice
Reform Act), did not apply to habeas proceedings. (Scott, at
p. 813.) The Supreme Court agreed that section 1054.3
applied only to the underlying criminal proceeding, but
concluded that the “referee merely cited that section as a
shorthand way to describe and limit the discovery he was
ordering.” (Scott, at p. 813.) Finding the referee acted
within his discretion in ordering this discovery, the Court
explained: “Penal Code section 1054.3 was a logical place for
the referee to look to fashion a fair discovery rule. It
requires the defendant to provide the names, addresses, and
statements of witnesses, expert reports, and real evidence
the defendant intends to offer. This requirement is not
onerous and could greatly facilitate the reference hearing.”
(Id. at p. 814.)
The parties here agree the criminal discovery scheme
would not authorize the superior court’s discovery order.
Section 1054.3 requires a criminal defendant to provide the
10
prosecution with relevant written or recorded statements
only of those persons “he or she intends to call as witnesses
at trial . . . .” (§ 1054.3, subd. (a)(1).) Our Supreme Court
has interpreted this requirement to apply to any witness the
defense “‘reasonably anticipates it is likely to call.’” (Izazaga
v. Superior Court (1991) 54 Cal.3d 356, 375-376 & fn. 11,
(Izazaga).) Absent an indication the defense reasonably
foresees calling the witness, section 1054.3 imposes no
disclosure obligation.5 (See ibid.; Sandeffer v. Superior
Court (1993) 18 Cal.App.4th 672, 678 [where counsel
represented he had not yet decided whether to call witness,
trial court exceeded its authority in ordering disclosures
about that witness].) As petitioner notes, the district
attorney has not yet filed a return, and the superior court
has not yet determined whether an evidentiary hearing is
warranted. Petitioner asserts he has therefore not
determined the witnesses he would call at any potential
future hearing.
Petitioner contends the superior court should have
limited its discovery order to the allowance of section 1054.3.
5 The Civil Discovery Act is broader in scope and does not
condition the disclosure of witness statements on the party’s
intent to call the witness at trial. (See Code Civ. Proc.,
§§ 2017.010 [generally, “any party may obtain discovery
regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action . . . if the matter
either is itself admissible in evidence or appears reasonably
calculated to lead to the discovery of admissible evidence”],
2031.010 [providing for document production].)
11
He acknowledges the criminal discovery statutes do not
govern discovery in habeas proceedings but maintains that if
a statute addresses the relevant material -- here, witness
statements -- the court must “look[] no further.” In support,
petitioner notes Scott’s observation that section 1054.3 was a
“logical place . . . to look to fashion a fair discovery rule”
(Scott, supra, 29 Cal.4th at p. 814), and argues his approach
accords with the rule that a specific statutory provision
controls over a general one.
We disagree that the superior court was bound to
adhere to the scope of discovery under section 1054.3. The
California Supreme Court in Scott identified this provision
as “a logical place for the referee to look,” and found the
referee acted within his discretion. (Scott, supra, 29 Cal.4th
at p. 814.) The Court did not say section 1054.3 was the only
logical source to consider in crafting a fair discovery rule or
that the referee’s discretion to order discovery was limited by
it. Scott stands for the simple proposition that the criminal
discovery statutes “may provide guidance in crafting
discovery orders on habeas corpus.” (Pearson, supra, 48
Cal.4th at p. 572, citing Scott, supra, at pp. 813-814.)
Following Scott, the Court has recognized that the criminal
discovery provisions “are a bad fit for habeas corpus” because
they are geared toward the underlying trial, rather than the
issues raised on habeas. (Pearson, supra, at p. 572.)
As for the rule that a specific statute prevails over a
general one, it applies only when the two deal with the same
subject and are inconsistent. (See Code Civ. Proc., § 1859
12
[“when a general and [a] particular provision are
inconsistent, the latter is paramount to the former”]; San
Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2
Cal.4th 571, 577 [“‘A specific provision relating to a
particular subject will govern in respect to that subject, as
against a general provision, although the latter, standing
alone, would be broad enough to include the subject to which
the more particular provision relates’”].) The rule has no
application here, where the relevant statutes -- section
1054.3 and the Civil Discovery Act -- govern different
discovery schemes, and neither controls the dispute at issue.
In short, we conclude that under Scott, a trial court has
discretion to exceed the bounds of the criminal discovery
scheme in fashioning a “fair” discovery rule. We therefore
turn to consider the petitioner’s invocation of the qualified
attorney work-product protection.
B. The Qualified Attorney Work-Product Protection
Petitioner contends that when requested discovery
reaches beyond the scope of the criminal discovery scheme,
the qualified attorney work-product protection, codified in
Code of Civil Procedure section 2018.030, subdivision (b),
applies to shield relevant materials from discovery. He
argues the qualified work-product protection precludes the
superior court’s discovery order. The district attorney
counters that this protection has no application in habeas
proceedings and that in any case, it would not bar the court’s
discovery order. As explained below, we conclude the
13
qualified work-product protection is available in habeas
proceedings following an order to show cause, and that in the
instant case, the rule operates to shield the relevant
information from discovery at this stage of the proceedings.
1. Availability of Qualified Attorney WorkProduct
Protection in Habeas Proceedings
The work-product doctrine originated in common law
and is now codified in Code of Civil Procedure section
2018.030. (See People v. Superior Court (Laff) (2001) 25
Cal.4th 703, 718 (Laff) [Code of Civil Procedure
section 2018.030’s predecessor was “intended to restate the
common law regarding attorney work product”].) It provides
absolute protection to any “writing that reflects an attorney’s
impressions, conclusions, opinions, or legal research or
theories . . . .” (Code Civ. Proc., § 2018.030, subd. (a).) To all
other attorney work product, this doctrine provides only
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., subd. (b).) The work-product doctrine reflects “the
policy of the state to . . . [¶] (a) [p]reserve the rights of
attorneys to prepare cases for trial with that degree of
privacy necessary to encourage them to prepare their cases
thoroughly and to investigate not only the favorable but the
unfavorable aspects of those cases[; and] [¶] (b) [p]revent
14
attorneys from taking undue advantage of their adversary’s
industry and efforts.” (Code Civ. Proc., § 2018.020.)
In Coito v. Superior Court (2012) 54 Cal.4th 480
(Coito), our Supreme Court held that “a witness statement
obtained through an attorney-directed interview is, as a
matter of law, entitled to at least qualified work product
protection.” (Id. at p. 497.) The Court based this holding on
the “interests that the Legislature sought to protect in
enacting the work product privilege.” (Id. at p. 496.) The
Coito court explained that when an attorney interviews
witnesses and records their statements, “the attorney has
expended time and effort in identifying and locating each
witness, securing the witness’s willingness to talk, listening
to what the witness said, and preserving the witness’s
statement for possible future use.” (Coito, supra, 54 Cal.4th
at p. 496.) Allowing opposing counsel to obtain these
recorded statements would conflict with the Legislature’s
policy to prevent “free riding” on the adversary’s industry
and efforts. (Ibid., citing Code Civ. Proc., § 2018.020, subd.
(b).)
Additionally, the Court stated that “a default rule
authorizing discovery of witness statements procured by an
attorney would impede the Legislature’s intent ‘to encourage
[attorneys] to prepare their cases thoroughly and to
investigate not only the favorable but the unfavorable
aspects of those cases.’” (Coito, supra, 54 Cal.4th at p. 496,
quoting Code Civ. Proc., § 2018.020, subd. (a).) It explained:
“If attorneys must worry about discovery whenever they take
15
a statement from a witness, it is reasonably foreseeable that
fewer witness statements will be recorded and that adverse
information will not be memorialized. . . . [W]ithout work
product protection, ‘no meaningful privacy exists within
which an attorney may have sufficient confidence to
thoroughly investigate and record potentially unfavorable
matters.’ This result would derogate not only from an
attorney’s duty and prerogative to investigate matters
thoroughly, but also from the truth-seeking values that the
rules of discovery are intended to promote.” (Coito, supra, at
pp. 496-497.)
Although the work-product doctrine is codified in the
discovery provisions of the Code of Civil Procedure, several
decisions have applied it in various additional contexts “[i]n
order to further the policies underlying [it] . . . .” (Laff,
supra, 25 Cal.4th at p. 718, citing People v. Coddington
(2000) 23 Cal.4th 529, 606 [doctrine precluded trial use of
work product even though it was not obtained through
discovery]; County of Los Angeles v. Superior Court (1990)
222 Cal.App.3d 647, 654-658 (County of Los Angeles)
[opposing party cannot retain adversary’s former expert
witness without violating doctrine]; Rodriguez v. McDonnell
Douglas Corp. (1978) 87 Cal.App.3d 626, 648-649 [doctrine
applies at trial as well as in pretrial discovery proceedings];
70 Ops.Cal.Atty.Gen. 28, 33-35 (1987) [doctrine applies in
grand jury proceedings].)
Before the enactment of Proposition 115, our Supreme
Court had held that the work-product doctrine also applied
16
in criminal cases, citing its purpose in assuring “‘the
thorough preparation and presentation of each side of the
case.’” (People v. Collie (1981) 30 Cal.3d 43, 59 (Collie),
quoting United States v. Nobles (1975) 422 U.S. 225, 238.)
Proposition 115, however, “expressly limit[ed] the definition
of ‘work product’ in criminal cases to ‘core’ work product,
that is, any writing reflecting ‘an attorney’s impressions,
conclusions, opinions, or legal research or theories.’”
(Izazaga v. Superior Court, supra, 54 Cal.3d at p. 382, fn. 19,
italics omitted.) “Thus, the qualified protection of certain
materials . . . applicable in civil cases, is no longer available
in criminal cases.” (Ibid.)
Petitioner argues the qualified privilege applies in
habeas proceedings following an order to show cause if the
discovery sought exceeds the scope of the criminal discovery
scheme. We agree. Any discovery rule fashioned by the trial
court in a habeas proceeding must be a “fair” one. (Scott,
supra, 29 Cal.4th at p. 814.) In our view, while the court
may go beyond the limits of the criminal discovery statutes,
fairness demands the availability of the qualified workproduct
protection under those circumstances.
Though codified in the discovery provisions of the Code
of Civil Procedure, the work-product doctrine originated in
common law, and courts have applied it in a variety of
contexts in both civil and criminal cases based on the
doctrine’s purposes. (See Laff, supra, 25 Cal.4th at p. 718
[collecting cases]; People v. Collie, supra, 30 Cal.3d at p. 59.)
The purposes of the qualified work-product protection apply
17
equally in habeas proceedings. No less than counsel in
ordinary civil cases, counsel investigating a habeas case
expends time and effort worthy of protection from opposing
counsel’s appropriation. (Cf. Code Civ. Proc., § 2018.020,
subd. (b); Coito, supra, 54 Cal.4th at p. 496.) And no less
than in ordinary civil cases, a default rule authorizing
discovery of the fruits of habeas counsel’s investigation
would discourage counsel from investigating unfavorable
aspects of the case and from memorializing adverse
information, thereby derogating from counsel’s duty to
investigate matters thoroughly as well as from the truthseeking
function of discovery. (Cf. Code Civ. Proc.,
§ 2018.020, subd. (a); Coito, supra, at pp. 496-497.) Unlike
the discovery order in Scott, a discovery rule permitting
unfettered access to qualified attorney work product in all
habeas cases would be onerous and would potentially hinder,
rather than facilitate, a subsequent hearing. (Cf. Scott,
supra, 29 Cal.4th at p. 814 [requirement that petitioner
provide only the witness statements, expert reports, and real
evidence that he “intend[ed] to offer” was not onerous and
“could greatly facilitate the reference hearing”]; Coito, at
pp. 496-497.)
In arguing the qualified protection should not be
available, the district attorney emphasizes it is no longer
available in criminal cases under Proposition 115. While
recognizing proposition 115 does not apply to habeas
proceedings, the district attorney contends those proceedings
are “more criminal than civil” for purposes of the work-
18
product doctrine. She asserts that under Scott, a trial court
may “fashion reciprocal discovery orders for materials that
would have been discoverable under section 1054.3,” and
argues “[i]t makes little sense to give materials more
protection on habeas corpus than they would have enjoyed in
the underlying criminal case.”
What these contentions ignore, however, is that section
1054.3 would not authorize discovery of the relevant
materials here. As discussed, the scope of discovery under
section 1054.3 is narrower than the scope allowed under the
Civil Discovery Act, and it does not include statements of
witnesses the defendant does not intend to call at trial. A
criminal defense counsel thus need not worry that
interviewing an unfavorable witness would compel
disclosure of that witness’s statements to the prosecution.
Proposition 115’s rejection of the qualified work-product
protection is therefore tempered by the more limited scope of
discovery it authorizes. But the discovery rule the district
attorney offers would reach beyond the scope of both the
criminal and civil discovery schemes, and would disregard
the important interests protected by the qualified workproduct
protection without requiring any justification. This
rule would lead to unduly burdensome discovery, chill
habeas counsel’s investigations of unfavorable aspects of
their clients’ cases, and impede the truth-seeking function of
the discovery procedures. Such a discovery rule could hardly
be described as “fair.” (See Scott, supra, 29 Cal.4th at
p. 814.)
19
We therefore hold that where, as here, the discovery
sought exceeds the scope of the criminal discovery scheme,
the qualified work-product protection is available in habeas
corpus proceedings following an order to show cause.
Accordingly, we turn to consider the application of that
protection here.
2. Application of the Qualified Attorney WorkProduct
Protection
Work product subject to qualified protection “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.” (Code Civ. Proc., § 2018.030, subd. (b).) The
party seeking disclosure of qualified work product has the
burden of establishing unfair prejudice or injustice justifying
the disclosure. (Coito, supra, 54 Cal.4th at p. 499.) We
review a trial court’s application of the qualified workproduct
protection for abuse of discretion, and its
determination that denial of disclosure would unfairly
prejudice the party seeking it for substantial evidence.
(Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 536
(Armenta).)
“Unfair prejudice results where the party seeking
discovery establishes that there exists ‘“no adequate
substitute”’ for the material [sought]. [Citation.]
Conversely, when the party has equivalent opportunity to
generate comparable evidence in its own case presentation,
20
there is no unfair prejudice.” (Armenta, supra, 101
Cal.App.4th at p. 535.) A showing that no adequate
substitute exists must be supported by competent evidence.
(See County of Los Angeles, supra, 222 Cal.App.3d at p. 654,
fn. 4 [hearsay evidence insufficient to defeat qualified workproduct
protection].)
As our Supreme Court has recognized, when an
attorney interviews a witness and records his or her
statement, opposing counsel is generally “free to interview
the witness for himself or herself to find out what
information the witness has that is relevant to the
litigation.” (Coito, supra, 54 Cal.4th at p. 496.) “Absent a
showing that a witness is no longer available or accessible,
or some other showing of unfair prejudice or injustice
[citation], the Legislature’s declared policy is to prevent an
attorney from free riding on the industry and efforts of
opposing counsel [citation].” (Ibid.)
The district attorney argues denial of the disclosure
here would nevertheless unfairly prejudice the People in
preparing a defense to petitioner’s habeas claim. She
asserts: “This case is already 20 years old. At least one of
the sitting jurors has already passed away. Fading
memories will make it difficult to get the same information
today. There is no guarantee that any jurors will consent to
further interviews.”
The district attorney’s concerns, while legitimate, are
too speculative to override the qualified work-product
protection. The superior court agreed to send a letter to all
21
jurors, asking if they would be willing to speak with counsel
for the parties. The record does not reflect whether this
letter was sent before the court issued its discovery order, or
if so, whether any responses had been received. While it is
possible the jurors and alternates will refuse to speak with
counsel, it is also possible they will agree to do so. And while
any responding alternates may not remember what they
might have recalled at any previous interview with
petitioner’s counsel, they may also relay the same
recollection of events or clarify that they never spoke with
petitioner’s counsel. Hypothetical difficulties are insufficient
to show a witness is unavailable or to otherwise defeat the
qualified work-product protection. (See Coito, supra, 54
Cal.4th at pp. 496, 499; Armenta, supra, 101 Cal.App.4th at
p. 535; County of Los Angeles, supra, 222 Cal.App.3d at
p. 654, fn. 4.) As petitioner notes, the district attorney may
file a return disputing his allegations even without the
requested information. (See People v. Duvall (1995) 9
Cal.4th 464, 485-486 [respondent filing return in habeas
proceedings may satisfy pleading burden by alleging with
specificity that despite acting with due diligence, crucial
information is not readily available, and that there is good
reason to dispute certain allegations or question the
credibility of certain declarants].)
Nothing prevents the district attorney from again
seeking this information if her attempts to obtain it
independently prove unsuccessful. However, her current
attempt to compel the disclosure is premature. Accordingly,
22
we conclude the superior court abused its discretion in
ordering the discovery at this stage of the proceedings. (See
Armenta, supra, 101 Cal.App.4th at p. 536.)

Outcome: Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting in part the district attorney’s motion for discovery, and to issue a new order denying that motion without prejudice to its renewal.

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