BREAKING NEWS: In Coito v. Superior Court, California Supreme Court addresses work product privilege for witness statements and identities

The issue of witness identity surfaces in a number of interesting ways in class actions.  A few years ago, a number of cases examined whether plaintiffs could discovery the identity and contact information of putative class members.  With little qualification, that question was answered in the affirmative (the nature of privacy interests involved define the outer limits on such discovery, but usually yield to the right to obtain discovery of witness identity).  Today, in Coito v. Superior Court (June 25, 2012), the California Supreme Court examined the work product protections applicable to (1) recordings of witness interviews conducted by investigators employed by defendant's counsel, and (2) information concerning the identity of witnesses from whom defendant's counsel has obtained statements. The trial court sustained objections to production of such material, concluding as a matter of law that the recorded witness interviews were entitled to absolute work product protection and that the other information sought was work product entitled to qualified protection.   A divided Court of Appeal reversed, concluding that work product protection does not apply to any of the disputed items.

The Supreme Court held that the correct result is somewhere between what the trial court decided and what the court of appeal decided:

We conclude that the Court of Appeal erred. In light of the legislatively declared policy and the legislative history of the work product privilege, we hold that the recorded witness statements are entitled as a matter of law to at least qualified work product protection. The witness statements may be entitled to absolute protection if defendant can show that disclosure would reveal its “attorney's impressions, conclusions, opinions, or legal research or theories.” (§ 2018.030, subd. (a).) If not, then the items may be subject to discovery if plaintiff can show that “denial of discovery will unfairly prejudice [her] in preparing [her] claim . . . or will result in an injustice.” (§ 2018.030, subd. (b).)

As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney‟s industry or efforts (qualified privilege).

Slip op., at 2.

The Court went on to analyze first the recorded statements of witnesses collected by an investigator at the behest of an attorney.  Following that analysis, the Court expressly overruled a number of cases on this issue:

In sum, we disapprove Fellows v. Superior Court, supra, 108 Cal.App.3d 55, People v. Williams, supra, 93 Cal.App.3d 40, Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d 626, and Kadelbach v. Amaral, supra, 31 Cal.App.3d 814 to the extent they suggest that a witness statement taken by an attorney does not, as a matter of law, constitute work product. In addition, Greyhound, supra, 56 Cal.2d 355, which was decided before the Legislature codified the work product privilege, should not be read as supporting such a conclusion. At the same time, we reject the dicta in Nacht & Lewis, supra, 47 Cal.App.4th at page 217 that said “recorded statements taken by defendants‟ counsel would be protected by the absolute work product privilege because they would reveal counsel's 'impressions, conclusions, opinions, or legal research or theories' . . . . [Citation.]” Instead, we hold that a witness statement obtained through an attorney-directed interview is entitled as a matter of law to at least qualified work product protection. A party seeking disclosure has the burden of establishing that denial of disclosure will unfairly prejudice the party in preparing its claim or defense or will result in an injustice. (§ 2018.030, subd. (b).) If the party resisting discovery alleges that a witness statement, or portion thereof, is absolutely protected because it “reflects an attorney's impressions, conclusions, opinions, or legal research or theories” (§ 2018.030, subd. (a)), that party must make a preliminary or foundational showing in support of its claim. The trial court should then make an in camera inspection to determine whether absolute work product protection applies to some or all of the material.

Slip op., at 20.

The Court then considered discovery directed at the identity of witnesses from whom statements were collected:

The Court of Appeal reasoned that, because the recorded witness statements themselves were not entitled to work product protection, defendant could not refuse to answer form interrogatory No. 12.3. In so concluding, the majority disagreed with Nacht & Lewis, which held that the information sought by form interrogatory No. 12.3 is entitled as a matter of law to qualified work product protection to the extent it consists of recorded statements taken by an attorney. (Nacht & Lewis, supra, 47 Cal.App.4th at p. 217.) Justice Kane, in his separate opinion below, identified a third approach. He would have adopted a default rule requiring parties to respond to form interrogatory No. 12.3, while permitting parties to make a showing that the responsive material is entitled to qualified or absolute protection. As explained below, the approach suggested by Justice Kane is most consistent with the policies underlying the work product privilege.

Slip op., at 21.  The Court considered the various, hypothetical situations where a list of witnesses providing statements might reveal thoughts and impressions.  After discussing the extreme situations, the Court concluded that such discovery should usually be answered:

Because it is not evident that form interrogatory No. 12.3 implicates the policies underlying the work product privilege in all or even most cases, we hold that information responsive to form interrogatory No. 12.3 is not automatically entitled as a matter of law to absolute or qualified work product privilege. Instead, the interrogatory usually must be answered. However, an objecting party may be entitled to protection if it can make a preliminary or foundational showing that answering the interrogatory would reveal the attorney's tactics, impressions, or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney's industry or efforts. Upon such a showing, the trial court should then determine, by making an in camera inspection if necessary, whether absolute or qualified work product protection applies to the material in dispute.

Slip op., at 24.  The decision was unanimous.

Trial courts should groan in pain at this outcome.  It guarantees that counsel will view their client as having nothing to lose in refusing to provide this information.  Which guarantees that trial courts will have to resolve these fights by reviewing lists of names in camera.  Of course, bad faith refusal to respond will, in the long run, cost parties their credibility with the trial court, but they won't internalize the cost effectively unless strict discovery sanctions are imposed.

What procedures must a Court follow when a plaintiff settles, leaving a "headless" putative class action?

I've faced a species of this issue myself.  But it turns out that the answer to this question involves more potential twists and turns than one might first believe.  Seems there's more than one way to skin this headless cat.  And, in a most interesting twist, the appellate division tackling this question is very same division that decided Parris v. Superior Court, 109 Cal. App. 4th 285 (2003) [pre-certification communications with class members], Belaire-West Landscape, Inc. v. Superior Court, 149 Cal. App. 4th 554 (2007) [discovery of putative class member identity and contact information], and Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325 (2008) [discovery of putative class member identity and contact information], so one might say that this division has a certain expertise regarding this prickly area.

In Pirjada v. Superior Court (December 12, 2011), the Court of Appeal (Second Appellate District, Division Seven) issued an order to show cause but ultimately denied the petition for a writ of mandate brought by the plaintiff following the denial of a discovery motion.  The plaintiff settled his individual claim through direct negotiations with defendant's CEO.  The trial court granted leave to amend the complaint to name a new class representative but denied the motion to compel precertification discovery to identify a suitable class representative.

What will ultimately happen in this case remains unclear.  But this opinion does identify key decisions that might have changed the result, though that is hard to say with certainty.

The Court began its discussion by restating existing standards.  First, class member rights are protected, even pre-certification.  Second, court approval is not needed to communicate with putative class members, but when a court's assistance is solicited, a court can consider the potential for abuse.  Third, class member contact information is "generally discoverable."  Fourth, lead plaintiffs, who are unqualified to serve as a class representative may, "in a proper case," move for discovery to find a new representative.  However, the Court also noted that precertification discovery is not a matter of absolute right.

Next, citing La Sala v. American Savings & Loan Assn., 5 Cal. 3d 864  (1971) and Kagan v. Gibraltar Sav. & Loan Assn., 35 Cal. 3d 582 (1984) (disapproved in part on another ground in Meyer v. Sprint Spectrum L.P., 45 Cal.4th 634 (2009)), the Court emphasized the trial court's obligation, as also stated in Rule 3.770, to consider carefully any request to dismiss a class action and evaluate whether notice is necessary.

Then, after noting that the standard of review is the abuse of discretion standard, the Court explained why the writ must be denied. Petitioner first argued, as a matter of discovery law, that because defendant failed to respond to document requests, it waived any objection. Absent a finding that the failure was the result of mistake, inadvertence or excusable neglect, Petitioner argued that it was an abuse of discretion to deny the motion to compel. Second, as a matter of the procedural law governing class actions, Petitioner argued that the court abused its discretion in declining to authorize notice to potential class members about the need for a substitute representative. The Court found the first contention to be incorrect and the second premature.

Interestingly, though the Court ultimately rejected the challenge to the discovery order, it was highly critical of defendant's behavior:

Outside the context of representative and class actions it may well be, as Pacific National observes, “a matter of common knowledge and common sense” that once a plaintiff settles his or her case any discovery responses not yet due no longer need to be served. Because the lawsuit against Pacific National was filed as a class action, however, and the individual settlement with Pirjada was made without the participation or consent of his lawyer, the experienced employment law attorneys representing Pacific National should have either objected to the still-outstanding discovery as moot, moved for a protective order or taken steps to ensure that the settlement agreement between their client and Pirjada included a provision withdrawing any remaining discovery requests.

Slip op., at 12.  The Court then observed that the trial court could have crafted a number of alternative orders designed to locate a suitable representative.  Here's where things get interesting.  The trial court first considered and denied a motion to give notice to the class.  That order was not challenged, though the Court telegraphed its opinion of the Order:

Although the court's decision to deny Westrup Klick's motion for notice to the class was based largely on a distinction between consumer and employee class actions, a distinction we implicitly rejected in Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th 554, the propriety of that ruling is not before us. Westrup Klick did not seek writ review of the court's May 26, 2011 order. Instead, it elected to proceed by way of a motion to compel.

Slip op., at 13.  The Court then concluded that the trial court's decision to deny the motion to compel after giving time to find a new representative was not arbitrary or capricious.

As to the second, premature argument, the Court also seemed to be hinting that the trial court should proceed with caution:

Whether or not the superior court's initial decision not to notify potential class members that Pirjada now lacks standing to represent the class was correct, the court will necessarily revisit that question when it hears its order to show cause regarding dismissal. Counsel's declaration in support of the petition for writ of mandate indicates a new class representative cannot be identified by the informal means authorized in Parris, supra, 109 Cal.App.4th 285, and discussed by the superior court during the May 26, 2011 hearing. Assuming that remains the case, Westrup Klick will have an opportunity to demonstrate to the court that some form of notice is required to avoid prejudice to absent class members. It would be inappropriate for us to prejudge the outcome of that hearing or to restrict the superior court's discretion by attempting to outline the factors it should weigh in deciding how to comply with the requirements of La Sala, Kagan and Rule 3.770.

Slip op., at 14-15.  Riiiiiight.  Good thing they didn't give the trial court a look at their cards.

So now you know, at a minimum, that when the representative suddenly hits the eject button, class counsel needs to walk carefully through the dismissal process so as to seek the best possible methods for locating replacement representatives and/or obtaining notice to the putative class.

Court of Appeal finds no privacy interest in residential address

I'm playing catch-up again, which explains the date on this post vis-a-vis the date on the opinion I want to mention.  In Folgelstrom v. Lamps Plus, Inc. (pub. ord. May 20, 2011, mod. June 7, 2011), the Court of Appeal (Second Appellate District, Division Five) reviewed a judgment entered following a successful demurrer to a complaint principally challenging the collection of customer zip codes during credit card transactions.  The super easy part of the decision was the portion where the Court said, "Based on the holding of Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th 524 (Pineda), we reverse the judgment and order the trial court to overrule the demurrer to plaintiff's cause of action alleging a violation of the SongBeverly Credit Card Act of 1971 (Credit Card Act) (Civ. Code, § 1747 et seq.)."  Easy.

That's not the interesting part.  That's the part where the plaintiff lucked out.  The interesting part comes when the Court discusses the causes of action that didn't pass muster: invasion of common law and constitutional rights to privacy, and violation of Business and Professions Code section 17200, the Unfair Competition Law (UCL).  Discussing the privacy interest in a residential address, the Court said:

Plaintiff offers no explanation of why we should find a privacy interest in plaintiff's address based on the Supreme Court's conclusion that performing a bodily function under the watchful eye of strangers implicates a privacy interest.

Slip op., at 4-5, referencing Hill v. National Collegiate Athletic Assn., 7 Cal. 4th 1 (1994).  Just another arrow in the quiver when arguing about whether a plaintiff is entitled to discovery of contact information for putative class members.

Ninth Circuit discusses individual privacy interests in FOIA context

While not directly applicable to class member identity discovery, the Ninth Circuit recently provided some guidance about individual privacy interests and how they are weighed against a countervailing set of interests to keep them confidential.  Prudential Locations LLC v. U.S. Department of Housing and Urban Development (9th Cir. June 9, 2011) involved a Freedom of Information Act request for identification of various informants that advised the U.S. Department of Housing and Urban Development (“HUD”) about their suspicions that Prudential Locations LLC was violating the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. §§ 2601-2617, which was passed, in part, to “eliminat[e] . . . kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services.” 12 U.S.C. § 2601(b)(2).

The Court described the process of review as one in which the Court must first identify a non-trivial privacy interest.  If such an interest is identified, the Court must then “balance the privacy interest protected by the exemption[ ] against the public interest in government openness that would be served by disclosure.”  Finally, the Court said that it must evaluate the likelihood that a privacy invastion would occur.  The Court concluded that HUD had failed to provide the trial court with sufficient information to rule on the request and remanded to give HUD an opportunity to do so.

While not precisely analagous to the test applied when discovery of class member identity is sought, this opinion at least suggests the type of analysis that must occur then balancing an asserted privacy interest in identity and contact information with the strong right to discover that information.

District Court Magistrate Judge grants motion to compel deposition of withdrawing named plaintiff who was not a putative class member

United States Magistrate Judge Suzanne H. Segal (Central District of California) granted defedants' motion to compel the deposition of a named plaintiff that had filed a motion for voluntary dismissal and was not a putative class member.  Dysthe, et al. v. Basic Research, L.L.C., et al., ___ F.R.D. ___, 2011 WL 1350409 (C.D. Cal. Apr. 8, 2011).  The named plaintiffs Shalena Dysthe, Eric Hall and Chaunte Weiss filed a class action complaint alleging that various defendants made purportedly false claims concerning the efficacy of Relacore weight-loss products.  [I am shocked, shocked to hear of false claims related to the efficacy of a weight-loss product.]  When the defendants sought to schedule depositions, they were notified that Hall intended to dismiss his claims with prejudice.  The defendants responded that they would stipulate to the dismissal after the deposition.  Motions ensued.  Defendants argued that Hall's testimony was still relevant to certification.  Plaintiffs argued that Hall wouldn't even be a class member when his claims were dismissed with prejudice.

The Court explained, "Generally, to depose putative or absent class members, a party must show that 'discovery is both necessary and for a purpose other than taking undue advantage of class members.'"  Slip op., at 3.  Then the Court observed that, because Hall had not been dismissed, the showing required for discovery from putative class members was not applicable; Hall was still a party.  Even when dismissed, the Court found that Hall's testimony regarding his experience with Relacore would be highly relevant.

Written contact with putative class members for purpose of finding new plaintiff is not solicitation under California Rule of Professional Conduct 1-400

United States District Court Judge Susan Illston (Northern District of California) concluded that letters to putative class members seeking a new plaintiff were neither in violation of the Court's prior order governing class member contact nor a violation of California Rule of Professional Conduct 1-400, which governs solicitation.  Rand v. American National Insurance Company, 2010 WL 2758720 (N.D. Cal July 13, 2010).

In an earlier Order in that matter, the Court, in an effort to ensure protection of putative class members' privacy rights, instructed plaintiff's counsel to:

inform each policyholder at the outset of the initial contact that he or she has a right not to speak with counsel and that if he or she chooses not to speak with counsel, counsel will immediately terminate contact and not contact them again. Additionally, counsel will inform the policyholder that his or her refusal to speak with counsel will not prejudice his or her rights as a class member if the Court certifies a class. Finally, counsel is to keep a record for the Court of policyholders who make it known that they do not wish to be contacted.

Slip op., at 1.  After the death of the plaintiff, plaintiff's counsel sent a letter containing a first paragraph with substantially compliant language in the first paragraph.  The letter then went on to encourage contact to discuss the circumstances of annuity purchases.  The Court concluded that the inclusion of the disclaimer language in the first paragraph satisfied the Court's prior Order and was not an improper solicitation:

The Court also finds that the letter complies with California Rule of Professional Conduct 1-400. That rule defines “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment....” Cal. R. Prof. Conduct 1-400(A). The rule defines “solicitation” as “any communication ... concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and ... [w]hich is: (a) delivered in person or by telephone.” Id. at 1-400(B)(1)-(2). The rule generally prohibits “solicitations.” Id. at 1-400(C). As plaintiffs note, the letter was sent by mail, and thus it is not a “solicitation.” Defendant argues that because the letter invited policyholders to contact plaintiff's counsel by telephone, the letter is a “solicitation.” The Court disagrees, as the plain language of Rule 1-400(B) states that a solicitation is a communication “delivered” in person or by telephone. Here, the communication was delivered by mail. See Parris v. Superior Court, 109 Cal.App. 4th 285, 298 n. 6 (2003) (neither mail notice nor web site was “solicitation” under Rule 1-400(B)).

Slip op., at 2.

Discovery ruling in Currie-White v. Blockbuster, Inc. holds that a protective order is sufficient protection for class member contact information ordered produced

United States Chief Magistrate Judge Maria-Elena James is on a roll with the class member contact information discovery orders.  In Currie-White v. Blockbuster, Inc., 2010 WL 1526314 (N.D.Cal. Apr 15, 2010), Magistrate Judge James Ordered defendant to produce class member contact information, subject to certain modifications to a pre-existing protective order in the case.  The interesting additional tidbit in this case is that it is described as a "class action against Defendant under the Labor Code Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq."  Moving to certify PAGA-based penalty claims certainly eliminates all the uncertainty about PAGA-based representative actions.

Discovery ruling in McArdle v. AT&T Mobility LLC finds that notice is unnecessary when ordering class member contact information produced

United States Chief Magistrate Judge Maria-Elena James, as if predicting the very contents of my April 21, 2010 Daily Journal article, ordered Defendants AT & T Mobility LLC, New Cingular Wireless PCS LCC, and New Cingular Wireless Services, Inc. to produce the contact information for thousands of customers that had complained after incurring international roaming charges without first issuing a privacy notice.  McArdle v. AT & T Mobility LLC, 2010 WL 1532334 (N.D.Cal. Apr 16, 2010).

Chief Magistrate Judge James said:

As to providing a written notice to the customers, the Court finds such notice unnecessary. First, Pioneer does not impose a notice requirement. Second, notice would make no sense here, as witnesses cannot choose to “opt out” of civil discovery.  Tierno v. Rite Aid Corp., 2008 WL 3287035, at *3 (N.D.Cal.2008). “Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.” Puerto v. Superior Court, 158 Cal.App.4th at 1242, 1256-57 (2008). The Court notes that the minimal information Plaintiff requests is indeed contemplated under the Federal Rules of Civil Procedure as basic to the discovery process. Specifically, Rule 26(a)(1)(A) requires each party to disclose before formal discovery begins “the names, addresses and telephone numbers of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Here, many of Defendants' complaining customers may be considered percipient witnesses to the relevant issue - international-roaming charges, and could therefore be considered persons having discoverable knowledge and proper subjects of discovery.

Slip op., at 4; see also, Boo-ya, at page bite me.  Defendants were given 14 days to provide the contact information.

“Generally, witnesses are not permitted to decline to participate in civil discovery, even when the information sought from them is personal or private.”  Yes.  Witnesses don't get to opt-out of being witnesses.

Daily Journal article on right to discover witness identities in class actions

The April 21, 2010 edition of the Daily Journal includes my article, entitled "Witnesses Cannot Hide," in the Perspective column. It explains that the right to discover putative class member identity in class actions is really the right to discover witness identity in general. Discovery of witnesses is a foundational element of civil discovery rights. The arguments about privacy notices are intended to distract from this core right. The article is posted below with permission of Daily Journal Corp. (2010).

If you have difficulty viewing the flash object, the direct link is here.  I thank the editorial staff of the Daily Journal for providing the posting permission.