Filed 10/2/19 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SAMUEL ZAMUDIO JIM E NEZ,

Petitioner,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

R eal Party in Interest. B297595

(Los Angeles County Super. Ct. No. VA036217)

ORIGINAL PROCEEDINGS in mandate. Roger Ito, Judge. Petition granted with direction s

. Susan Garvey

, Paula Fog , and Gillian F. Quandt for
Peti tioner.2 Jackie Lacey

, District Attorney, Phyllis C. Asayama and Matthew Brown, Deputy District Attorneys for Real Party in Interest. No appearance for Respondent.

__________________________________

INTRODUCTION
Petitioner Samuel Zamudio Jim e nez , a deat h

- row inmate, seeks a writ of mandate to vacate the superior court’s discovery order in this habeas corpus proceeding. In his petition for a writ of habeas corpus, petitioner claimed the jury at his capital trial impermissibly considered the opinion of at least one alternate juror in deciding his guilt.
T he Supreme Court issued an order to show cause on this
claim in the respondent superior court. On the district attorney ’s motion on behalf of real party in interest, the superior court subsequently order ed petitioner to produce the statements of any alternate jurors he had interviewed.
In his petition for a writ of mandate, petitioner argues the court abused its discretion in order ing this discovery . He
claims the superior court was required to limit di scovery to the scope of the criminal discovery statutes, which do not authorize the discovery sought here. Alternatively, he maintains the discovery order violates the qualified attorney work

- product protection. In response, the district attorney

argues the criminal discovery statutes do not constrain the superior court

, and extends the qualified work

- product3

protection is unavailable in habeas proceedings. Sh e also

asserts that even if generally applicable, the work

- product protection would not preclude the superior court’s order.
W e agree with the d istrict attorney that discovery in habeas proceedings following an order to show cause may exceed the scope of the criminal discovery scheme. However, we hold that the qualified work

- product protection app lies to discovery beyond that scope and

-- at this juncture of the proceedings

-- precludes the superior court’s discovery order. We therefore grant petitioner’s requested relief

.

BACKGROUND In 1997, a jury convicted petitioner of two counts of
first de gree murder , among other offenses, and found true multiple special circumstance allegations. The court imposed a death sentence . Following trial, the court sealed the jurors’ identifying information and prohibited the parties from contacting them without authorization. On automatic appeal, t he California Supreme Court affirmed petitioner’s
convictions and sentence

. ( People v. Zamudio (2008) 43 Cal.4th 327, 333

- 334.) 1 In 2010, p etitioner filed a n amended petition for a writ
of habeas corpus , alleging, in ter alia, juror misconduct

1 The Supreme Court’s opinion showed petitioner’s name as “Samuel Zamudio” based on the information filed in the trial court; according to his habeas corpus petition, petitioner’s true name is Samuel Zamudio Jim e nez. ( In re Zamudio Jimenez (2010) 50 Cal.4th 951, 954, fn. 3.)4

during the guilt

- phase deliberations

. He claimed the jurors improperly considered the opinion of at least one alternate juror during their deliberations. Attached to his p etition was the declaration of E.P., an alternate juror at petitioner’s trial, stating that E.P. sat with the jurors during deliberations, that the jurors asked for her opinion on petitioner’s guilt, and that E.P. replied she agreed he was guilty. In March 2018, the California Supreme Court
ordered the People to show cause in the superior court why relief should not be granted on petitioner’s claim of juror
misconduct.
The d istrict attorney filed a petition in the superior

court requesting that before real party’s return was due, the
court contact the 11 surv iving seated jurors (one had passed away) and the alternates by letter to ask if they we re willing to speak with the parties’ counsel

. At a subsequent hearing

, the court agreed to this request. During the hearing, the parties agreed that if a ny juror co nsented to speak to one party, that party would provide the juror ’s statement to the
other

. The d istrict attorney asked that this disclosure requirement apply to any statements petitioner might previously have obtained from any jurors , seated or alternate s , though petitioner represented his current counsel
had interview ed no seated jurors. 2 The court indicated it

2 Petitioner has not indicated

, either in the superior court or before us

, whether his counsel interviewed any alternate jurors other than E.P.5

was inclined to order the discovery the d istrict attorney had requested , but allowed petitioner to brief the issue.
Petitioner filed a brief o pposing the requested discovery

. He noted the criminal discovery statute applicable to defendants’ pretrial disclosures, Penal Code
section 10 5 4.3, require s defendants to disclose the

statements of only those witnesses the y intend to call at
trial

. 3 Peti tioner maintained section 1054.3 delineated the extent of the court’s authority to order discovery of witness

statements

. He further argued the court’s order was
unauthorized under the civil discovery scheme, as it would require disclosure of his counsel’ s qualified work product. After considering petitioner’s opposition, the court order ed petitioner “to provide all statements [his counsel had] obtained from the alternate jurors about whether or not they participated in jury deliberations

. . . .”

3 Penal Code section 1054.3, subdivision (a) requires a criminal defendant to disclose to t he prosecuting attorney: “(1) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those p ersons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the tri al. “(2) Any real evidence which the defendant intends to offer in evidence at the trial.” Undesignated statutory references are to the Penal Code.6 Petit ioner filed this petition for a writ of mandate seeking relief from the superior court’s discovery order. We issued an order to show cause why that ruling should not be
vacated.

DISCUSSION
We review a trial court’s discovery order for abuse of
discretion . ( Union Bank of California v. Superior Court (2005) 130 Cal.App.4th 378, 388.) “However, when ‘the propriety of a discovery order turns on .

. . a question of law,’ we ‘determine the issue de novo.’” ( City of Los Angeles v. Superior Court (2017) 9 Cal. App.5th 272, 282, quoting Gilbert v. Superior Court (2014) 224 Cal.App.4th 376, 380.)
Petitioner claims the superior court should have
limited its discovery order to the scope of the criminal discovery scheme

. Alternatively, h e asserts the court’s
disco very order violates the qua lified attorney work

- product protection. The d istrict attorney maintains that neither the
criminal discovery scheme nor the qualified work

- product protection constrains discovery in habeas proceedings. Sh e also argues that even if generally applicable, the work

product protection would not preclude the superior court’s
order. We discuss the parties’ contentions in turn, begin ning
with the general scope of discovery in habeas corpus proceedings following an order to show cause

.7 A. The Scope of Discovery Following an Order to Show
Cause in Habeas Corpus Proceedings
Generally , court

- ordered discovery is unavailable in habeas corpus proceedings “unless and until a court issues an order to show cause.” ( People v. Superior Court ( Moral es ) (2017) 2 Cal.5th 523, 528.) But once an order to show cause
has issue d

, courts have discretion to order discovery as to issues on which the petition has stated a prima facie case

. ( See In re Scott (2003) 29 Cal.4th 783, 815 ( Scott ) [discovery
order f ollowing order to show cause was not abuse of discretion]; Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1243 [discovery following order to show cause “must be relevant to the issues upon which the petition states a prima facie case for relief”].) Such discovery may include disclosures by the People and the petitioner

. 4 ( Scott , at p. 814.)

4 Section 1054.9, added to the Penal Code in 2003, affords convicted defendants in certain categories of c ases , and under certain conditions, a right to limited discovery “upon the prosecution of a postconviction writ of habeas corpus . . . or in preparation to file that writ

. . . . ” (§ 1054.9, subd. (a).) Discovery under this provision includes only “mater ials to which the defendant would have been entitled at the time of trial

. . . . ” ( In re Steele (2004) 32 Cal.4th 682, 695.) Section 1054.9 thus does not authorize discovery of evidence generated or uncovered after trial, such as new expert reports and new witness statements, which may be most relevant to the habeas proceeding. Indeed, our Supreme Court has stated the criminal discovery provisions, which are similar in scope to section 1054.9, “are a bad fit for (Fn. is continued on the next page.)8 The precise nature and scope of discovery following an
order to show cause “has generally been resolved on a case

by

- case basis.” ( Scott

, supra , 29 Cal.4th at p. 813 .) Habeas corpus “is a special proceeding and not entirely analogous to either [civil or criminal proceedings].” ( Id. at p. 815, fn. 7.) Thus, the statutory provisions governing discovery in criminal trials do not apply to habeas co rpus matters ( id. at p. 813), “although they may provide guidance in crafting discovery orders on habeas corpus” ( Pearson

, supra , 48 Cal.4th at p. 572). Nor has our Supreme Court indicated that the civil discovery scheme governs discovery in habeas

procee dings. Instead, the Court has tasked trial court s with “fashion[ing] a fair discovery rule.” ( Scott , at p. 814.)

habeas corpus” because the issues raised on habeas “may or may not relate to any of the evidence presented or not presented in the underlying criminal trial.” ( People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 572 ( Pearson ) .) Nor does section 1054.9 authorize reciprocal discovery by the People

. Neither party argues section 1054.9 limits courts’ power to order discovery following an order to show cause, and we conclude it does not. Affording defendants limited discovery as of right does not imply a rejection of the courts’ discretion to order more extensive discovery following an order to show cause. (Cf. In re Bryce C. (1995) 12 Cal.4th 226, 233 [statute affording indigent appellants right to appointed counsel in certain appeals did not negate courts’ discretion to appoint counsel for i ndigent respondents in similar appeals].) And we do not believe the Legislature intended to deny parties access to information that may be most relevant to the proceeding.9 I n Scott

, the California Supreme Court appointed a referee to take evidence and decide factual questions in a capital habeas corpus proceed ing . ( Scott

, supra , 29 Cal.4th at p. 792.) On the Attorney General’s motion, the referee ordered the petitioner to provide certain discovery, including “[a]ll discovery allowed under Penal Code section 1054.3,” which governs criminal defendants’ pretrial disclosure obligations . ( Scott

, supra , at p. 812.) Challenging this ruling in the Supreme Court, the petitioner argued that section 1054.3, enacted in 1990 as part of the reciprocal discovery provisions of Proposition 115 (the Crime Victims Justice
Refo rm Act), d id not apply to habeas proceedings. ( Scott, at

p. 813.) T he Supreme Court agreed that section 1054.3 applied only to the underlying criminal proceeding, but concluded that the “referee merely cited that section as a shorthand way to describe an d limit the discovery he was ordering.” ( Scott, at p. 813

. ) Finding the referee acted within his discretion in ordering this discovery, the Court explained : “Penal Code section 1054.3 was a logical place for
the referee to look to fashion a fair discove ry rule. It requires the defendant to provide the names, addresses, and statements of witnesses, expert reports, and real evidence the defendant intends to offer. This requirement is not onerous and could greatly facilitate the reference hearing. ” ( Id. at p. 814.) The parties here agree the criminal discovery scheme
would not authorize the superior court’s discovery order.
S ection 1054.3 requires a criminal defendant to provide the10

prosecution with relevant written or recorded statements only of those p ersons “ he or she intends to call as witnesses
at trial

. . . . ” ( § 1054.3, subd. (a)(1).) Our Supreme Court
has interpreted this requirement to apply to any witness the defense “‘reasonably anticipates it is likely to call.’” ( Izazaga v. Superior Court (1991) 54 Cal.3d 356, 37 5

- 376 & fn. 11
, ( Izazaga ) .) Absent an indication the defense reasonably foresees calling the witness, section 1054.3 imposes no disclosure obligation. 5 (See ibid. ; Sandeffer v. Superior
Court (1993) 18 Cal.App.4th 672, 678 [where counsel represented he had not yet decided whether to call witness, trial court exceeded its authority in ordering disclosures
about that witness].) As petitioner notes, the d istrict attorney has not yet filed a return , and the superior court has not yet determined whether an evidentiary hearing is
warranted

. Petitioner asserts he has therefore not
determined the witnesses he would call at a ny potential future hearing.
Petitioner contends the superior court should have limited its discovery order to th e allowance of section 1054.3

.

5 The Civil Discovery Act is broader in scope and does not condition the disclosur e of witness statements on the party’s intent to call the witness at trial. (See Code Civ. Proc., §§ 2017.010 [generally, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence”], 2031.010 [providing for document production].)11

H e acknowledges the criminal discovery statutes do not

g overn discove ry in habeas proceedings but maintains that if

a statute addresses the relevant material

-- here, witness

statements

-- the court must “look [] no further.” In support, petitioner notes Scott ’s observation that section 1054.3 was a “logical place .

. . to look to fashion a fair discovery rule ” ( Scott

, supra , 29 Cal.4th at p. 814), and argues his approach accords with the rule that a specific statutory provis ion controls over a general one.
We disagree that the superior court was bound to
adhere to the scope of discovery under section 1054.3. The
California Supreme Court in Scott identified this provision

as “ a logical place for the referee to look

, ” and fo und the
referee acted within his discretion

. ( S cott , s upra , 29 Cal.4th at p. 814.) The Court did not say section 1054.3 was the only logical source to consider in crafting a fair discovery rule or
that the referee ’s discretion to order discovery was limi ted by
it

. Scott stands for the simple proposition that the criminal discovery statutes “may provide guidance in crafting discovery orders on habeas corpus.” ( Pearson

, supra , 48 Cal.4th at p. 572, citing Scott

, supra , at pp. 813

- 814.) Following Scott

, t he Court has recognized that the criminal discovery provisions “are a bad fit for habeas corpus” because they are geared toward the underlying trial

, rather than the issues raised on habeas. ( Pearson

, supra , at p. 572

. )
As for the rule that a specific s tatute prevails over a general one, it applies only when the two deal with the same subject and are inconsistent. (See Code Civ. Pro c ., § 185912

[“when a general and [a] particular provision are inconsistent, the latter is paramount to the former”]; San
Fra ncisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577 [“‘A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing alone, would be broad en ough to include the subject to which the more particular provision relates ’ ”].) Th e rule has no application here, where the relevant statutes

-- section 1054.3 and the Civil Discovery Act

-- govern different discovery schemes

, and neither controls the dis pute at issue. In short, we conclude that under Scott , a trial court ha s discretion to exceed the bounds of the criminal discovery
scheme in fashioning a “fair” discovery rule

. We therefore turn to consider the petitioner’s invocation of the qualified

a ttorney work

- product protection

.

B. The Qualified Attorney Work

- Product Protection
Petitioner contends that when requested discovery reaches beyond the scope of the criminal discovery scheme, the qualified attorney work

- product protection, codified in
Code of Civil Procedure section 2018.030, sub division (b), applies to shield relevant materials from discovery. He argues the qualified work

- product protection precludes the superior court’s discovery order. The d istrict attorney

counters that this protectio n has no application in habeas proceedings and that in any case, it would not bar the court’s discovery order. As explained below, we conclude the13

qualified work

- product protection is available in habeas proceedings following an order to show cause

, and t hat in the instant case, the rule operates to shield the relevant information from discovery at this stage of the proceedings

.

1. Availability of Qualified Attorney Work

Product Protection in Habeas Proceedings

The w ork

- p roduct d octrine originated in commo n law
and is now codified in Code of Civil Procedure section 2018.030. (See People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 718 ( Laff ) [ Code of Civil Procedure
section 2018.030’s predecessor was “intended to restate the common law regarding attorne y work product”].) It 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).) To all
other attorney work product , this doctrine provides only qualified protection : such material “is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injust ice.” ( Id

. , subd. (b).) The work

- product doctrine reflects “the policy of the state to .

. . [¶] (a) [p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly a nd to investigate not only the favorable but the unfavorable aspects of those cases[; and] [¶] (b) [p]revent14

attorneys from taking undue advantage of their adversary ’ s industry and efforts.” ( Code Civ. Proc., § 2018.020.)
In Coito v. Superior Court (201 2) 54 Cal.4th 480 ( Coito ) , our 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.” ( Id. at p. 497.) T he Court based this holding on the “interests that the Legislature sought to protect in enacting the work product privilege.” ( Id. at p. 496.) T he
Coito court explained that when an attorney interviews witnesses and records their statements, “the attorney has expended time and effort in identifying and locating each witness, securing the witness’s willingness to talk, listening to what the witness said, and preserving the witness’s statement for possible future use.” ( Coito, s upra , 54 Cal.4th at p. 496

. ) A llowing opposing counsel to obtain these
recorded statements would conflict with the Legislature’s policy to prevent “free riding” on the adversary’s industry and efforts. ( Ibid. , citing Code Civ. Proc., § 2018.020 , subd. (b). ) Additionally , the Court stated that “a default rule

a uthorizing discovery of witness statements procured by an attorney would impede the Legislature’s intent ‘to encourage [attorneys] to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases.’” ( C oito

, supra , 54 Cal.4th at p. 496

, quoting Code Civ. Proc., § 2018.020, subd. (a).) It explained : “I f attorneys must worry about discovery whenever they take15

a statement from a witness, it is reasonably foreseeable that
fewer witness statements will be r ecorded and that adverse
information will not be memorialized.

. . . [W]ithout work product protection, ‘no meaningful privacy exists within which an attorney may have sufficient confidence to thoroughly investigate and record potentially unfavorable

matt ers.’ This result would derogate not only from an attorney ’ s duty and prerogative to investigate matters thoroughly, but also from the truth

- seeking values that the rules of discovery are intended to promote.” ( Coito

, supra , at

pp. 496

- 497 .)
A lthough the work

- product doctrine is codified in the discovery provisions of the Code of Civil Procedure, several
decisions have applied it in various additional contexts “ [ i ] n order to further the policies underlying [ it ]

. . . . ” ( Laff

, supra , 25 Cal.4th at p. 718 , citing People v. Coddington (2000) 23 Cal.4th 529, 606 [doctrine precluded trial use of work product even though it was not obtained through discovery]; County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654

- 658 ( County of Los Angeles ) [o pposin g party cannot retain adversary’ s former expert witness without violating doctrine] ; Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 648

- 649 [doctrine applies at trial as well as in pretrial discovery proceedings] ; 70 Ops.Cal.Atty.Gen. 28, 33

- 35 (1987) [doctrine applies in grand jury proceedings] .)
Before the enactment of P roposition 115, our Supreme
Court had held that the work

- product doctrine also applied16

in criminal cases , citing its purpose in assuring “‘the thorough preparation and presentation of each side of the case.’” ( People v. Collie (1981) 30 Cal.3d 43, 59 ( Collie )

, quoting United States v. Nobles (1975) 422 U.S. 225, 238.) Proposition 115, however, “expressly limit [ ed ] the definition
of ‘ work product ’ in criminal cases to ‘core’ work product

, that is, any writing reflecting ‘an attorney ’ s impressions, conclusions, opinions, or legal research or theories.’” ( Izazaga v. Superior Court

, supra , 54 Cal.3d at p. 382 , fn. 19,
italics omitted .) “Thus, the qualified protection of certain
materials

. . . applicable in civil cases, is no longer available in criminal cases.” ( Ibid. )
P etitioner argues the qualified privilege applies in habeas proceeding s following an order to show cause if the discovery sought e xceed s the scope o f the criminal discovery
scheme. We agree. Any discovery rule fashioned by the trial court in a habeas proceeding must be a “fair” one. ( Scott

, supra , 29 Cal.4th at p. 814

. ) In our view, while the court may go beyond the limits of the criminal discover y statutes, fairness demands the availability of the qualified work

product protection under those circumstances.
T hough codified in the discovery provisions of the C ode
of C ivil P rocedure, the work

- product doctrine originated in
common law , and courts ha ve applied it in a variety of

contexts in both civil and criminal cases based on the doctrine’s purposes

. (See Laff

, supra , 25 Cal.4th at p. 718 [collecting cases]; People v. Collie

, supra , 30 Cal.3d at p. 59 .)
Th e purposes of the qualified work

- p roduct protection apply17

equally in habeas proceedings. No less than counsel in ordinary civil cases, counsel investigating a habe as case expends time and effort worthy of protection from opposing
counsel’s appropriation . ( Cf. Code Civ. Proc., § 2018.020,
subd. (b) ; Coito

, supra , 54 Cal.4th at p. 49 6.) And no less than in ordinary civil cases, a default rule authorizing discovery of the fruits of habeas counsel’s investigation would discourage counsel from investigating unfavorable aspects of the case and from m emorializing adverse information, thereby derogating from counsel’s duty to investigate matters thoroughly as well as from the truth

seeking function of discovery . (Cf. Code Civ. Proc., § 2018.020, subd. (a); Coito

, supra , at pp. 496

- 497.) Unlike
the dis covery order in Scott , a discovery rule permitting unfettered access to qualified attorney work product in all habeas cases would be onerous and would potentially hinder, rather than facilitate, a subsequent hearing. ( Cf. Scott

, supra , 29 Cal.4th at p. 81 4 [requirement that petitioner provide only the witness statements, expert reports, and real evidence that he “intend[ed] to offer” was not onerous and “could greatly facilitate the reference hearing”]; Coito , at

pp. 496

- 497

. ) In arguing the qualified p rotection should not be available, the d istrict attorney emphasizes it is no longer
available in criminal cases under Proposition 115. While recogniz ing proposition 115 does not apply to habeas proceedings, the d istrict attorney contends those proceedings are “more criminal than civil” for purposes of the work

-18

product doctrine. Sh e asserts that under Scott , a trial court may “fashion reciprocal discovery orders for materials that
would have been discoverable under section 1054.3

, ” and argues “[i]t makes l ittle sense to give materials more protection on habeas corpus than they would have enjoye d in the underlying criminal case.” What these contentions ignore, however, is that section 1054.3 would not authorize discovery of the relevant
materials here. As discussed, the scope of discovery under
section 1054.3 is narrower than the scope allowed under the Civil Discovery Act, and it does not include statements of
witnesses the defendant does not intend to call at trial. A
criminal defense counsel thus need not worry that interviewing an unfavorable witness would compel disclosure of that witness’s statements to the prosecution. Proposition 115’s rejection of the qualified work

- product protection is therefore tempered by the more limited scope of discovery i t authorizes. But t he discovery rule the d istrict attorney offers would reach beyond the scope of both the criminal and civil discovery schemes

, and would disregard the important interests protected by the qualified work

product protection without requiri ng any justification

. This
rule would lead to unduly burdensome discovery , chill habeas counsel’s investigations of unfavorable aspects of their clients’ cases, and impede the truth

- seeking function of the discovery procedures . Such a discovery rule coul d hardly
be described as “ fair. ” ( See Scott

, supra , 29 Cal.4th at

p. 814

. )19 W e therefore hold that where, as here, the discovery sought exceeds the scope of the criminal discovery scheme, the qualified work

- product protection is available in habeas

corpu s proceedings following an order to show cause

. Accordingly, w e turn to consider the application of th at protection here

.

2. Application of the Qu alified Attorney Work

Product Protection
Work product subject to qualified protection “is not
discoverable unl ess the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.” (Code Civ. Proc., § 2018.030, subd. (b).) The party seeking disclosure of qu alified work product has the burden of establishing unfair prejudice or injustice justifying
the disclosure. ( Coito

, supra , 54 Cal.4th at p. 499.) We review a trial court’s application of the qualified work

product protection for abuse of discretion, and its determination that denial of disclosure would unfairly prejudice the party seeking it for substantial evidence. ( Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 536 ( Armenta ) .) “Unfair prejudice results where the party seeking discovery establi shes that there exists ‘“no adequate
substitute”’ for the material [sought] . [Citation.] Conversely, when the party has equivalent opportunity to generate comparable evidence in its own case presentation,20

there is no unfair prejudice.” ( Armenta

, supra , 101 Cal.App.4th at p. 535.) A showing that no adequate substitute exists must be supported by competent evidence. (See County of Los Angeles

, supra , 222 Cal.App.3d at p. 654, fn. 4 [hearsay evidence insufficient to defeat qualified work

product protectio n ] .) As our Supreme Court has recognized, when an attorney interviews a witness and records his or her statement, opposing counsel is generally “free to interview
the witness for himself or herself to find out what
information the witness has that is relev ant to the litigation.” ( Coito

, supra , 54 Cal.4th at p. 496.) “Absent a showing that a witness is no longer available or accessible, or some other showing of unfair prejudice or injustice [citation] , the Legislature ’ s declared policy is to prevent an

att orney from free riding on the industry and efforts of opposing counsel [citation] .” ( Ibid. )
The d istrict attorney argues denial of the disclosure
here would nevertheless unfairly prejudice the People in preparing a defense to petitioner’s habeas claim. Sh e
asserts : “This case is already 20 years old. At least one of the sitting jurors has already passed away. Fading memories will make it difficult to get the same information today. There is no guarantee that any jurors will consent to
further intervi ews. ”
The d istrict attorney ’s concerns, while legitimate, are too speculative to override the qualified work

- product protection. The superior court agreed to send a letter to all21

jurors, asking if they would be willing to speak with counsel for the part ies

. The record does not reflect whether this letter was sent before the court issued its discovery order, or if so, whether any responses had been received

. While it is possible the jurors and alternates will refuse to speak with counsel, it is also pos sible they will agree to do so. And while any responding alternates may not remember what they might have recalled at any previous interview with petitioner’s counsel , they may also relay the same recollection of events or clarify that they never spoke wi th petitioner’s counsel. Hypothetical difficulties are insufficient

to s how a witness is unavailable or to otherwise defeat the qualified work

- product protection . (See Coito

, supra , 54 Cal.4th at pp. 496, 499; Armenta

, supra , 101 Cal.App.4th at p. 535; C

ounty of Los Angeles

, supra , 222 Cal.App.3d at

p. 654, fn. 4.) As petitioner notes, the district attorney may file a return disputing his allegations even without the requested information . (See People v. Duvall (1995) 9 Cal.4th 464, 485

- 486 [respondent filing return in habeas proceedings may satisfy pleading burden by alleging with specificity that despite acting with due diligence, crucial information is not readily available, and that there is good reason to dispute certain allegations or question the credibility of certain declarants].) Nothing prevents the d istrict attorney from again seeking this information if her attempts to obtain it independently prov e unsuccessful. However, her current attempt to compel the disclosure is premature. Accordingly

,22

we conclude the superior court abused its discretion in ordering the discovery at this stage of the proceedings

. (See
Armenta

, supra , 101 Cal.App.4th at p. 536.)23 DISPOSITION Let a peremptory writ of mandate issue directing respondent superior court to vacate its order granting in part the d istrict attorney ’s motion for discovery, and to issue a new order denying that motion without prejudice to its
renewal

.

CERTIFIED FOR PUBLICATION

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.