Are defense counsel's witness interview recordings protected from criminal discovery? State v. Willden Explained

In State v. Willden, the Utah Supreme Court addressed a critical question about the scope of attorney work product protection in criminal discovery under recently amended Utah Rule of Criminal Procedure 16(b)(4).

Background and Facts

Derek Willden faced charges for physical and sexual assault of his domestic partner. During trial preparation, defense counsel and an investigator interviewed Willden’s two sons, who may have witnessed parts of the alleged assault. Defense counsel made audio recordings of these interviews. When the State moved for discovery under Rule 16(b), it specifically sought these interview recordings among other materials.

Key Legal Issues

The central issue was whether audio recordings of witness interviews conducted by defense counsel constitute attorney work product protected from disclosure under Rule 16(b)(4). The State argued that verbatim witness statements contain only factual information, not attorney mental impressions, and therefore lack work product protection. The district court agreed, ordering disclosure of redacted recordings containing only witness statements.

Court’s Analysis and Holding

The Utah Supreme Court reversed, emphasizing the 2021 amendments to Rule 16(b). The court noted that amended Rule 16(b)(4) explicitly states that disclosure obligations “do not include information or material that is privileged or attorney work product.” Critically, the rule now provides that “Attorney work product protection is not subject to the exception in Rule 26(b)(6) of the Utah Rules of Civil Procedure.”

This language severs the previous connection between criminal and civil discovery rules that allowed courts to distinguish between “core” and “factual” work product. Under the Gold Standard definition, the interview recordings satisfied all elements of work product: they were tangible things prepared in anticipation of litigation by or for the defendant’s representative.

Practice Implications

This decision significantly strengthens work product protection in Utah criminal cases. Defense counsel can no longer be compelled to disclose witness interview recordings based on arguments that they contain only “factual” information. The ruling provides clear protection for defense investigation materials, allowing attorneys to conduct witness interviews without fear of compelled disclosure. However, Justice Hagen’s concurrence notes that twenty-nine states have adopted “reverse Jencks” rules requiring such disclosure, suggesting this issue may be revisited through rule amendments.