A discovery order in habeas proceedings following an order to show cause may exceed the scope of the criminal discovery scheme, but qualified attorney work-product protection applies to discovery beyond that scope. In his petition for writ of habeas corpus, petitioner (a death-row inmate) argued the jury impermissibly considered at least one alternate juror’s opinion in deciding guilt. The California Supreme Court issued an order to show cause in the respondent superior court. On the district attorney’s motion, the superior court ordered petitioner to produce the statements of any alternate jurors he had interviewed. Petitioner sought a writ of mandate to vacate the discovery order. He argued that the court was required to limit discovery to the scope of the criminal discovery statutes (which would not authorize the discovery order) and that the order violates the qualified attorney work-product protection. Held: Writ of mandate issued. Once an order to show cause has issued in habeas proceedings, courts have discretion to order discovery. Although the statutory provisions governing discovery in criminal trials (see Pen. Code, § 1054 et seq.) do not apply to habeas corpus proceedings, they may provide guidance. Here, the Court of Appeal concluded the superior court was not required to adhere to the scope of the criminal discovery scheme and had discretion to exceed its bounds in fashioning a fair discovery rule. However, where the discovery sought in habeas corpus proceedings exceeds the scope of the criminal discovery scheme, absolute and qualified attorney work-product protection is available. The work-product doctrine 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).) The doctrine provides qualified protection for all other attorney work product, which is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking it or will result in an injustice. (Id., subd. (b).)
At this stage of the proceedings, the superior court abused its discretion in ordering petitioner to provide the prosecution with statements his counsel had obtained from alternate jurors. At the prosecution’s request, the superior court ordered petitioner “to provide all statements [his counsel had] obtained from the alternate jurors about whether or not they participated in jury deliberations . . . .” The Court of Appeal concluded the superior court abused its discretion in ordering this discovery at this stage of the proceedings. A witness statement obtained through an attorney-directed interview is entitled to at least qualified work-product protection. Here, the district attorney failed to establish unfair prejudice or injustice justifying disclosure. The district attorney is free to interview the witnesses for herself to find out what information they have that is relevant to the litigation. Although the district attorney may encounter problems with obtaining statements from the jurors due to the age of the case, it is speculation at this point to say there is no adequate substitute to compelling the discovery from the defense. The district attorney may request discovery from the defense again if her attempts to obtain it independently prove unsuccessful.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/B297595.PDF