State v Willden, 2024 UT 37

This appeal pertains to the Utah Rules of Criminal Procedure, specifically rule 16(b)(4) which exempts a defendant from disclosing discovery materials that would be considered attorney work product. Facts In 2021, Derek Willden was charged with physical and sexual assault. While preparing for trial, Mr. Willden’s attorneys conducted interviews with…
attorney meeting with client at desk

This appeal pertains to the Utah Rules of Criminal Procedure, specifically rule 16(b)(4) which exempts a defendant from disclosing discovery materials that would be considered attorney work product.

Facts

In 2021, Derek Willden was charged with physical and sexual assault. While preparing for trial, Mr. Willden’s attorneys conducted interviews with several witnesses to the alleged assault and created audio recordings of those interviews. The State would later request discovery materials from the defense, asking for the audio recordings created by Wilden’s attorneys. The district court granted the State’s request, opposed by Mr. Willden, reasoning that the recordings could be redacted to avoid containing any attorney opinion, analysis, strategy, or otherwise identifiable attorney work product. Mr. Willden’s request for interlocutory appeal of the district court’s decision was granted for review by the Utah Supreme Court.

Issue & Reasoning

The Utah Supreme Court addresses two questions in their published opinion. First, what materials are defined as attorney work product, and second, did the district court’s order to disclose the recordings at issue violate Rule 16(b).  The Court in Gold Standard v. American Barrick defined attorney work product as documents and other tangible materials, prepared in anticipation of litigation or trial, by a party (or their representative) to the case. Such materials are designated as attorney work product and not discoverable material because they allow an attorney to assemble information, prepare their legal theories, and plan their strategy without the fear that this information will become available to opposing counsel.

In addressing the second question as to whether the district court’s order violated rule 16(b)(4), the Court rejects the State’s argument that “verbatim statements are not attorney work product.” The State had argued that the audio recordings created by Willden’s attorneys could be separated into the factual, verbatim statements made by the witnesses and the specific questions asked by the attorneys. Under this view the questions asked during the interviews could be redacted, thus eliminating any core attorney work product from the recordings. While this distinction may be relied upon in civil cases in Utah, rule 16(b)(4) specifically states attorney work product under the Utah Rules of Criminal Procedure cannot be distinguished in this way.

Under this interpretation the Court reasoned that if the recorded interviews met the definition of attorney work product set out in Gold Standard, then they would not be subject to disclosure under rule 16(b). The audio recordings do meet this standard as they are in fact tangible materials, prepared for trial, by a party to the case. The Utah Supreme Court reversed the district court’s order on discovery and remanded the case for further proceedings.

Concurrence

A concurring opinion was also filed in this decision, agreeing with the outcome reached by the Utah Supreme Court, but noting a relevant trend nationwide. A majority of states (29), as well as the federal government, do require prior relevant statements made by a defense’s witness to be disclosed to the prosecution. In the reasoning of the United States Supreme Court this reciprocal discovery obligation prevents criminal discovery from becoming a “one-way street”, aiding only the defense in a criminal trial. The concurring opinion states that if a similar rule change were to be adopted in Utah, the Advisory Committee on the Rules of Criminal Procedure would be appropriate forum for such a request to be made.

Originally Published: September 16, 2024

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