By Thomas Kaufman and Robert Mussig
On June 25, 2012, in Coito v. Superior Court, S181712, the California Supreme Court held that witness statements procured by an attorney, either directly or through an agent, are entitled at least to qualified work product protection, and in some cases absolute work product protection.
At the outset, understanding the distinction between "absolute" and "qualified" work product protection is critical to any analysis of the Coito decision. A writing containing an attorney’s impressions, conclusions, opinions, legal research, or legal theories receives absolute protection under the law, meaning the opposing party is not entitled to discovery of the writing under any circumstances. A writing containing any other attorney work product receives qualified protection, meaning the opposing party may be entitled to discovery of the writing if he or she can show that denial of discovery will result in unfair prejudice or injustice. What constitutes unfair prejudice or injustice is determined on a case-by-case basis, but it could include, for example, situations where witnesses are unavailable because of death or illness. The term "writing" is broadly defined to include any form of recorded information.
The facts of Coito are unfortunate, but relatively straightforward. A 13-year-old boy drowned in Modesto, California, and his mother sued various governmental entities for wrongful death, including the State of California. Six other juvenile boys witnessed the drowning. The state’s attorney sent investigators to interview four of the boys. The attorney provided the investigators with questions he wanted asked. The investigators interviewed the boys and obtained statements from them, which were recorded on compact disc.
The plaintiff ultimately served discovery seeking production of (1) the witness statements, and (2) the identity of any individuals from whom the state had obtained statements. The state refused to comply, and the plaintiff brought a motion to compel. Relying on Nacht & Lewis Architects v. Superior Court, 47 Cal. App. 4th 214 (1996), the trial court denied the motion, holding that the witness statements were entitled to absolute work product protection, and the other information was entitled to qualified protection. On appeal, the court reversed, concluding that work product protection did not apply to any of the disputed items.
After conducting a lengthy examination of the history of the work product doctrine, the California Supreme Court reversed the Court of Appeal. The Court held that the witness statements are entitled at least to qualified work product protection as a matter of law, and might be entitled to absolute protection if the state can show that disclosure would reveal its attorney’s impressions, conclusions, opinions, or theories. The Court held that the identity of any witnesses interviewed might be entitled to protection if the state can show that disclosure would (1) reveal its attorney’s tactics, impressions, or evaluations of the case (absolute privilege), or (2) result in opposing counsel taking undue advantage of its attorney’s industry or efforts (qualified privilege). The Court remanded the case so that these questions can be answered.
In so holding, the Court pointed out that the recorded statements would not exist "but for the attorney’s initiative, decision, and effort." The Court also noted generally that witness statements procured by an attorney would often "provide a window" into the attorney’s thought process. Finally, the Court contemplated situations where knowing who an attorney chose to interview – and who the attorney chose not to interview – would provide insight into his or her theory of the case, "perhaps especially so in cases involving a multitude of witnesses." If so, absolute protection would apply.
Coito comes into play in wage and hour class actions. In defending a wage/hour class action, defense counsel often gather declarations from putative class members. Based on Coito, such declarations are entitled at least to qualified work product protection, meaning that plaintiffs would have to show unfair prejudice or injustice in order to obtain such declarations before they are filed with the court (or to obtain any declarations that the employer chooses not to file with the court). Plaintiffs will have a harder time merely sitting back and waiting and then obtaining copies of all the declarations that defense counsel expended time and effort gathering.
It is unclear what showing the Plaintiff would need to make to overcome the qualified privilege in a typical class action. The plaintiff would need to show that he or she is not simply attempting to see what progress the employer’s attorneys have made. Moreover, in most cases, the employer should be able to show that such declarations are entitled to absolute protection, as they often contain statements that go to the very heart of the attorney’s theories (e.g., which witnesses I chose to interview, what subjects I chose to have them address).
We would expect that Plaintiffs would argue that the information in class member declarations does not really reveal anything important about the attorney’s strategy or mental impressions. If the declarations were simply form declarations taken from randomly selected class members, then the argument for absolute protection would be weaker. But, if witnesses were selected because they provided the best example of certain individualized issues, the argument for protection would be stronger. Coito seemed to leave the decision of whether the privilege applies in the sound discretion of the trial court, so the result one gets may vary significantly from judge to judge.
In sum, Coito certainly strengthened employers in their efforts to fend off attempts by class plaintiffs to obtain attorney-procured witness statements. Accordingly, while employers should feel relatively safe including in putative class member declarations whatever statements will help defeat class certification, they should take care to build a record that absolute work product protection applies.