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California: Qualified Attorney Work-Product Protection Applies to Discovery During Habeas Proceedings

by Douglas Ankney

In October 2, 2019, the California Court of Appeal for the Second Appellate District ruled that the qualified attorney work-product protection doctrine applies in habeas corpus proceedings. In 1997, a jury convicted Samuel Zamudio Jimenez of two counts of murder and sentenced him to death.

Jiminez filed a habeas petition in 2010, alleging juror misconduct among other claims. Attached to his petition was a declaration from alternate juror E.P., who stated that she sat with the jurors during deliberations, that jurors asked her opinion and that she told them she agreed that Jimenez was guilty.

The California Supreme Court ordered the state to show cause in the superior court why relief should not be granted on the juror misconduct claim.

At a subsequent hearing on Jimenez’s habeas petition, the superior court agreed to the district attorney’s request that letters be sent to the remaining jurors to ask if they were willing to speak with the parties’ counsel. The parties agreed that if any juror spoke to one party, that party would provide the juror’s statement to the other party.

The district attorney also requested that Jimenez be required to disclose any statements from jurors or alternates previously obtained. Jimenez objected, arguing, among other things, that the qualified attorney work-product protection doctrine shielded those statements from disclosure. The superior court disagreed and ordered Jimenez to provide all statements his counsel had obtained from the alternate jurors concerning whether they had participated in jury deliberations. Jimenez filed a petition for a writ of mandate seeking relief from the superior court’s discovery order.

In deciding the petition for writ of mandate, the Court of Appeal observed that court-ordered discovery is generally unavailable in habeas corpus proceedings “unless and until a court issues an order to show cause.” But once an order to show cause has been entered, courts have discretion to order discovery as to issues on which the petition has stated a prima facie case.

Because habeas corpus is analogous to neither civil nor criminal proceedings, the nature and scope of discovery following an order to show cause is resolved on a case-by-case basis. Thus, the statutes governing discovery in criminal trials and those governing discovery in civil cases do not apply to habeas proceedings, although those statutes can be used for guidance. The Court opined that the qualified attorney work-product protection doctrine provided absolute protection to any “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” citing Code of Civil Procedure § 2018.030.

The work-product doctrine reflects the policy of the state to preserve the rights of attorneys to prepare cases for trial with a degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only favorable but unfavorable aspects of those cases. It also prevents attorneys from taking undue advantage of their adversary’s industry and efforts. In Coito v. Superior Court, 54 Cal.4th 480 (Cal. 2012), the California 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.”

However, in Izazaga v. Superior Court, 54 Cal.3d 356 (Cal. 1991), the state Supreme Court had limited the application of the work-product protection in criminal cases to writings that reflect an attorney’s impressions, conclusions, opinions, or legal research or theories. But equally true in criminal cases, discovery is limited to disclosing witness statements of only those witnesses the attorney intends to call.

In the instant case, Jimenez did not yet know if he intended to call any of the jurors as witnesses. And as in a civil case, permitting discovery of the fruits of habeas counsel’s investigation would discourage counsel from investigating unfavorable aspects of the case and memorializing adverse information, diminishing counsel’s duty to investigate matters thoroughly.

The Court of Appeal concluded that the juror’s statements to Jimenez’s counsel were shielded from disclosure by qualified attorney work-product protection and that the superior court had abused its discretion in ordering discovery at this stage of the proceedings. Accordingly, the Court ordered the peremptory writ of mandate to issue, directing the superior court to vacate its order granting the district attorney’s motion for discovery and to enter a new order denying that motion without prejudice to its renewal. See: Jimenez v. Superior Court, 40 Cal. App. 5th 824 (Cal. App. 2d Dist. 2019). 

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Related legal case

Jimenez v. Superior Court