Audio Recordings Are Work Product And Not Discoverable
Recorded interviews created by defense counsel in a criminal case are work product and are not subject to disclosure to the prosecution, according to a decision of the Utah Supreme Court reversing a trial court order
In 2021, Derek Willden was charged with several counts of physical and sexual assault. While preparing for Willden’s trial, the State asked the district court to order Willden to disclose certain information pursuant to Utah Rule of Criminal Procedure 16(b). One category of items that the State sought—audio recordings of interviews that Willden’s counsel had conducted with witnesses—is relevant to this appeal.
Work product trumps discovery rule
Given our interpretation of rule 16, the determination that the interview recordings are work product resolves this appeal. Because these witness recordings are attorney work product, they are protected by rule 16(b)(4). And because rule 16(b)(4)’s protection of work product trumps the discovery obligations that may be created by the other subparagraphs of rule 16(b), the district court erred by ordering Willden to disclose the recordings under rule 16(b)(1). Accordingly, we reverse the district court’s discovery order and remand this case for further proceedings.
Concurrance by Justice Hagen
Anyone wishing to propose a potential rule change may petition this court to refer the matter to our Advisory Committee on the Rules of Criminal Procedure or may contact the committee directly. That committee consists of members appointed by this court to represent a cross-section of interests and is charged with studying proposed rule changes, gathering input from various stakeholders, considering public comment, and making recommendations to this court. That is the appropriate forum in which interested parties can advance policy arguments for and against adopting a “reverse Jencks” requirement. And that process will enable this court to make the most informed decision as to whether an amendment to rule 16(b) is warranted.