Retailers Beware: Statements May Not Be Protected Work Product
The nationwide spate of class action lawsuits against retailers continues. These lawsuits typically allege management-level employees are misclassified as exempt from overtime laws and non-exempt employees are not provided all required meal and rest breaks. Employers have developed strategies to try to defend against this wave of litigation. One common strategy against wage and hour class actions, particularly at the pre-certification stage, is “declaration blitzes” of putative class members.
In order to meet the requirements for class certification under Rule 23 of the Federal Rules of Civil Procedure, plaintiffs must prove to the court that:
- Each class is so numerous that joinder of all members as separate litigants is impracticable;
- There are questions of law and fact common to the classes (“commonality”);
- The claims or defenses of the representative parties are typical of the claims or defenses of the classes (“typicality”); and
- The representative parties will fairly and adequately protect the interests of the classes.
Where individual issues predominate, the court likely will not certify the class.
Declaration Blitzes
Effective declaration blitzes can convince a court that individual issues predominate. For example, in a class action alleging failure to provide meal and rest breaks, declarations from putative class members stating that their breaks are scheduled in a manner different from the representative plaintiff, and different from other putative class members, can establish lack of commonality and typicality. Similarly, in a class action alleging misclassification, declarations can go directly to issues of the individual’s duties and responsibilities to establish lack of commonality or typicality for class treatment. Showing a wide variation in duties, discretion and judgment among class members may establish insufficient commonality or typicality for class action treatment.
The law, however, is surprisingly unclear as to whether such declarations are open to pretrial discovery. Are such statements taken from potential class members or non-party witnesses protected from disclosure during discovery as “attorney work product”?
Reminder from California Court
A recent California Court of Appeals decision highlights the uncertain state of the law and offers a useful reminder of the care that should be taken in determining from whom to take statements or declarations and how such statements are drafted. In Coito v. Superior Court, No. F057960 (March 4, 2010), the court held the defendant failed to show that unsworn statements taken from non-party witnesses are protected from disclosure by the work product doctrine, flatly disagreeing with another California case holding such statements are per se protected by the doctrine.
In Coito, Jeremy Wilson, the 13-year-old son of plaintiff Debra Coito, died in a drowning incident. There were six witnesses, all of whose identities were known by all parties. The defendant’s counsel instructed investigators to ask a series of questions provided by counsel to four of the witnesses and make oral recordings of the questions and answers.
Under California law, which is similar to federal law, there are two types of attorney work product: absolute and qualified. An attorney’s “impressions, conclusions, opinions, or legal research or theories” are absolutely protected from discovery under California law. (Under federal law, absolute protection is provided to an attorney’s “impressions, conclusions, opinions, or legal theories.” FRCP 23(b)(3).) Other types of attorney work product are qualified, meaning they are discoverable only upon a showing of need and inability to obtain the information from other sources.
The court in Coito held first that witness statements are not absolute work product because they are “evidentiary material” and can be admitted at trial as prior inconsistent statements, prior consistent statements, or past recollections recorded. Further, because such statements are not absolute work product, neither is a list of witnesses from whom statements have been obtained.
Next, the court held the defendant failed to show the witness statements were qualified work product. The defendant argued the choice of which witnesses to interview, and the questions asked during the course of an interview, will reflect counsel’s impressions, conclusions, or theories about the case.
The court, however, held that whether a particular witness’ statement is qualified work product will depend on the circumstances, such as whether all witnesses known to both sides are interviewed and whether the attorney asks only a few questions. Further, the party seeking protection has the burden to show the doctrine applies. The court held the defendant failed to meet its burden because it did not request an “in camera” review of the statements and offered nothing factual about the statements other than counsel’s assertion that he “provided the investigator with questions he wanted answered.”
The court acknowledged it disagreed with the holding in a previous case that such witness statements are per se absolute work product. Nacht & Lewis Architects v. Superior Court, 47 Cal.App.4th 214 (1996). The court in Nacht & Lewis (without much reasoning, as the Coito court noted) held “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.’” Further, Nacht & Lewis held “a list of potential witnesses interviewed by defendants’ counsel which interviews counsel recorded in notes or otherwise would constitute qualified work product because it would tend to reveal counsel’s evaluation of the case by identifying the persons who claimed knowledge of the incident from whom counsel deemed it important to obtain statements.”
The Split
This split of authority within California is mirrored by a split of authority in federal courts and among treatises. In the seminal case on attorney work product, Hickman v. Taylor, 329 U.S. 495 (1947), the U.S. Supreme Court held signed statements from third party witnesses obtained by defense counsel were work product and therefore protected from discovery.
Recently, however, lower court decisions and treatises have taken strong issue with that holding. For example, in Dobbs v. Lamonts Apparel, 155 F.R.D. 650, 653 (D. Alaska 1994) [Ques: Is this the correct citation? Do you mean Alaska or Arkansas?], the court reasoned, “a verbatim witness statement, even one solicited by counsel, is per se necessary to the full and efficient development of a case. No subsequent form of discovery can realistically take the place of a witness’ prior written statement, whoever may come into possession of it. The verbatim, third-party witness statement is, by its very nature, material which must be subject to efficient discovery without being filtered by someone else.” Therefore, the court held, a party need not “make any showing of substantial need or inability to otherwise obtain” such verbatim witness statements.
A scholarly view to the same effect as Dobbs is found in Waits, Work Product Protection for Witness Statements: Time for Abolition, 1985 Wis. L. Rev. 305. A leading federal practice treatise opines that “automatic disclosure of witness statements would require revelation of the identities of all witnesses from whom the attorney decided to take a statement, thereby intruding into the heart of attorney trial preparation.” Wright & Miller, Federal Practice and Procedure, § 2028, at 583-84 (third ed. (2010)) [Ques: Blue Book format?]. “At a minimum, then, requiring a party to turn over witness statements should focus on specified witnesses,” and requiring the discovering party to show a need for the information “would ordinarily provide a suitable method for dealing with such circumstances.” Id.
For Your Consideration
Because the law is unsettled but apparently moving in the direction of greater discoverability, counsel should take particular care when obtaining declarations or other statements from potential class members or third party witnesses. Some or all of the following steps may minimize the danger that theories or unhelpful facts will be ordered disclosed to opposing counsel.
First, do not use audio or video recorders to take statements. When an attorney or his assistant notes a witness’s statement, as long as it is not verbatim, there is the argument that what was written down reveals what was considered important. When an audio or video recording is involved, there is no room to make that argument.
Second, for related reasons, counsel himself should do the interviewing and note-taking if time and resources permit. Counsel’s own non-verbatim notes most likely reflect his or her own impressions; a non-attorney interviewer’s notes reflect that individual’s impressions, not counsel’s.
Perhaps most important, take only those signed statements that counsel is prepared to turn over to the other side. Given the trend in the law, counsel should assume that any signed statement will be ordered produced. Therefore, if a witness has unhelpful things to say, consider foregoing any written statement from that witness.
