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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.Continue Reading California Supreme Court Clarifies and Strengthens Work Product Protections for Attorney-Procured Witness Declarations

As an UPDATE to an earlier article, please take notice that, on October 5, 2011, the National Labor Relations Board (“NLRB” or “Board”) announced that it would delay the effective date of its August 25 final rule that will require employers to post an NLRB-issued notice detailing employees’ unionization rights under the National Labor Relations Act (“NLRA”). Based on this new announcement, the effective date has been pushed back from November 14, 2011, until January 31, 2012. As a result, employers will have additional time to comply with the NLRB’s unionization rights notice rule, as explained in the earlier posting and set forth again as follows for your ease of reference.Continue Reading Updated Effective Date: NLRB Requires Employers to Post Unionization Rights Notice

Join our Sheppard Mullin attorneys as they discuss recent important developments in labor and employment law at both the state and federal level. We will explain how these new developments will affect the day-to-day decisions made by business owners, in-house counsel and human resource professionals. We will also discuss the current trends in employment litigation and how employers can protect themselves from liability in the workplace.Continue Reading Breakfast With Your Labor Lawyer – Fall 2011 Seminar Series

In Tides v. The Boeing Co., No. 10-35238, 2011 WL 1651245 (9th Cir. May 3, 2011), the United States Court of Appeals for the Ninth Circuit held that the whistleblower provisions of the Sarbanes-Oxley Act of 2002 ("SOX"), 18 U.S.C. § 1514A(a)(1), do not protect employees of publicly traded companies who disclose information to the media. Instead, the Court held, SOX protects employees only if they disclose certain types of information to the three groups identified in the statute: (1) federal regulatory and law enforcement agencies, (2) Congress and (3) employee supervisors. This case sets parameters for what is and what is not protected whistleblower activity under SOX for which an employee can receive damages under the law.Continue Reading Ninth Circuit Holds that SOX Whistleblower Provisions Do Not Protect Leaks to the Media

On January 27, 2011, another California Court of Appeal held in Ralph’s Grocery Co. v. United Food and Commercial Workers Union Local 8 that the Moscone Act and Labor Code section 1138.1, both of which give special protections to union picketing, are unconstitutional because they violate constitutional free speech protections. This is the second Court of Appeal decision within the past year to reach this conclusion.Continue Reading Another California Court of Appeal Finds California’s Special Protections for Labor Picketing to be Unconstitutional

Join our Sheppard Mullin attorneys as they discuss recent developments in labor and employment law at both the state and federal level. We will explain how these new developments will affect the day-to-day decisions made by in-house counsel and human resource professionals. We will also discuss the current trends in employment litigation, and how employers can protect themselves from liability.Continue Reading Labor & Employment Law Update & Happy Hour – Spring 2011