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.

Despite daunting facts, Court of Appeal confirms that California class actions are "opt-out" classes

Use of an opt-in approach for class actions has been rejected as contrary to California law.  Hypertouch Inc. v. Superior Court, 128 Cal. App. 4th 1527 (2005).  In Los Angeles Gay & Lesbian Center v. Superior Court, the rule in Hypertouch was tested with a more challenging set of facts, namely, the need to protect medical privacy rights.  The Court of Appeal (Second Appellate District, Division One) held, in Los Angeles Gay & Lesbian Center v. Superior Court (April 13, 2011), that the opt-out rule stated in Hypertouch is indeed the rule for class notice.  However, the Court fashioned other relief intended to protect the substantial privacy interest in medical information.

This matter was before the Court of Appeal for the second time.  In Bomersheim v. Los Angeles Gay & Lesbian Center, 184 Cal. App. 4th 1471, 1478 (2010) (Bomersheim I), the Court reversed the denial of class certification.  The matter alleged that, from January 1999 to March 2004, the Center administered an incorrect form of penicillin to person with confirmed or suspected cases of syphilis.

Once the matter was certified, the issue of notice became a focus of the litigation.  The Center argued that, due the sensitive nature of medical nature of the claims at issue, the court should utilize an opt-in mechanism.  The trial court held that an opt-out notice was appropriate and the Center filed a petition for a writ of mandate.  The Court heard the matter, saying, "This case presents the novel issue of whether an opt-out class is appropriate under California law where privacy rights and the physician-patient privilege will be severely compromised by the traditional opt-out procedure."  Slip op., at 11.

In concluding that opt-out notices were the only appropriate approach to class action notice proceedings, the Court said:

We recognize the benefits of a class action do not as readily accrue where members must affirmatively join the class. Here, the putative class members are those seeking free medical advice, and only approximately two-thirds of them responded to the Center's explanation of the error in medication and sought free retreatment. It is less likely that such members would affirmatively seek to join a class. Without the mandatory joinder effect of an opt-out class action, the Center will not obtain res judicata effect of a judgment; small individual class plaintiffs will not obtain the benefit of a settlement; and the cost of administering many small actions will not be avoided. Nonetheless, the Center points out that it has been more than six years since the error in medication, and if small class plaintiffs had wanted to come forward and file individual suits, they would have. This fact only underscores the point that the class plaintiffs in this action are likely of limited means and have limited access with which to pursue their claims judicially. A class action in which they automatically become participants benefits them.

Slip op., at 16-17.  However, the Court issued very specific instruction to protect the privacy of class members from disclosure without consent:

To the extent putative class members opt-out of the class, their names, other identifying information, and Medical Information shall not be subject to disclosure and shall remain sealed. With respect to those class members who do not opt-out of the class action, no class members' name, identifying information, or medical information is to be disclosed without that class members' prior authorization. Further, the trial court is to take steps to ensure that the names, identifying information, and medical information of the class members are not subject to disclosure under any circumstances in any public proceeding or public filing.

Slip op., at 24.  The Court limited disclosure of the class list to the third party administrator that would handle mailing of the notice.

Other coverage of Coito v. Superior Court

Coito v. Superior Court (March 4, 2010) is apparently generating a fair bit of interest, based upon the search engine traffic viewing this blog's post about this new opinion.  Other articles that may be of interest include: 

• Witness Interviews Aren't Privileged Work Product, Says Calif. Court (National Law Journal
• Court: Witness Statements Taken By Counsel Not Work Product (Metropolitan News-Enterprise)
• Blog:  California Appellate Report on Coito
• Blog:  The California Wage And Hour Blog For Employees on Coito
• Blog:  Cal Biz Lit on Coito
• Blog:  Legal Ethics Forum on Coito

More commentary will likely follow; this decision seems to have hit a nerve.

in brief: Coito v. Superior Court may alter the way in which information is gathered in some class actions

Yesterday, in Coito v. Superior Court (March 4, 2010), the Court of Appeal (Fifth Appellate District) addressed an issue that nominally concerned the collection of evidence in a wrongful death lawsuit naming California as one defendant.  The facts are particularly sad in that the case involved the death of a child, but, then, the facts of all wrongful death cases are sad.  The issue addressed in Coito is whether an attorney's collection of a witness statement after the attorney selected the witness to interview is work product (absolute or qualified).  Coito holds that even attorney-collected statements are not, unless the attorney's independent thoughts and analysis are inextricably intertwined with the statements of the witness.  The majority is exceedingly critical of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), a case frequently relied upon to shield putative class member declarations from discovery.  Coito puts that argument in jeopardy.  I may be wrong, but I think that this decision may affect the manner in which putative class members are handled during interviews by counsel on both sides.  The case, and especially the long and thoughtful concurring and dissenting opinion, deserves more attention than I can provide today, so I may post a longer comment over the weekend.

Costco Wholesale Corp. v. Superior Court puts the privilege in attorney-client privilege

This morning the California Supreme Court issued its opinion in Costco Wholesale Corp. v. Superior Court.  If you don't remember this case, the Trial Court granted a Motion to Compel the production of documents that included a partially redacted letter from outside counsel to Costco, commenting upon the appropriateness of classifying certain managerial employees as exempt from California’s overtime pay laws and regulations.  Then a Petition for a Writ was filed, an OSC issued, the OSC was dismissed without an opinion, the Supreme Court directed the Court of Appeal to issue an OSC, the matter was heard, and, finally, the Petition was denied.  The Supreme Court subsequently granted a Petition for Review.

Without getting into the nuts and bolts of the ruling at this time, the Supreme Court's determination was clearly stated in the opening paragraph:

In this case we consider whether the trial court erred by directing a referee to conduct an in camera review of an opinion letter sent by outside counsel to a corporate client, allowing the referee to redact the letter to conceal that portion the referee believed to be privileged, and ordering the client to disclose the remainder to the opposing party. We conclude the court‟s directions and order violated the attorney-client privilege, and violated as well the statutory prohibition against requiring disclosure of information claimed to be subject to the attorney-client privilege in order to rule on a claim of privilege. (Evid. Code, § 915, subd. (a).)

Slip op., at 1.  The opinion is unanimous, but Chief Justice George offers interesting remarks about the nature of what constitutes an attorney-client communication in a concurring opinion.

Costco Wholesale Corp. v. Superior Court and Roby v. McKesson Corporation opinions will be available November 30, 2009

Because of the Thanksgiving holiday, the Supreme Court announced opinion filings that will be published on Monday, November 30, 2009.  The Court's Notice is available here.

Costco Wholesale Corp. v. Superior Court, previously mentioned on this blog here, will address the following issues:

(1) Does the attorney-client privilege (Evid. Code, § 954) protect factual statements that outside counsel conveys to corporate counsel in a legal opinion letter? (2) Does Evidence Code section 915 prohibit a trial court from conducting an in camera review of a legal opinion letter to determine whether the attorney-client privilege protects facts stated in the letter?

And Roby v. McKesson Corporation will address the following issues:

(1) In an action for employment discrimination and harassment by hostile work environment, does Reno v. Baird (1998) 18 Cal.4th 640, require that the claim for harassment be established entirely by reference to a supervisor’s acts that have no connection with matters of business and personnel management, or may such management-related acts be considered as part of the totality of the circumstances allegedly creating a hostile work environment? (2) May an appellate court determine the maximum constitutionally permissible award of punitive damages when it has reduced the accompanying award of compensatory damages, or should the court remand for a new determination of punitive damages in light of the reduced award of compensatory damages?