Friday, May 15, 1998

DEFENSE ATTORNEY

Re: PLAINTIFF v. DOCTORS

Dear DEFENSE ATTORNEY:

We are in receipt of your letter dated May 11, 1998. I left a brief message yesterday on your voice mail concerning many of the documents requests that have been made. In that message, I stated that (1) either defendants are asking this office to photocopy all of the subpoenaed records which I believe you also have, or (2) defendants want this office to go through the subpoenaed records and produce select documents evidencing plaintiffs' contentions.

If defendants are asking us to reproduce documents they already have or are in a better position to retrieve than plaintiffs, the requests are obviously burdensome and intended to harass plaintiffs. If defendants are asking us to examine the records and select and/or sort by category documents that plaintiffs' attorneys believe are supportive of plaintiffs' positions, then defendants' are obviously asking for attorney work product, and your office is perhaps attempting to avoid examining and sorting the subpoenaed records by probing into how much work this office has done and what we have found so far.

Please find accompanying this letter Plaintiffs' Further Document Production in Response to Demand for Production of Documents, Set No. One. Supplemental documents have been retrieved and are being forwarded to you by plaintiffs as promised. Included are medical billings, prescriptions, statements of the attending doctor, and the benefits brochure of decedent's health insurance policy. In addition, a copy of PLAINTIFF and DECEASED's Marriage Certificate is included as requested by other parties in this action.

CASES CITED IN OUR OBJECTIONS REGARDING ATTORNEY WORK PRODUCT

City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65. The Court of Appeal issued a writ of mandate directing the trial court to vacate an order requiring the defendant in a personal injury action to answer an interrogatory seeking a list of the nonexpert witnesses it intended to call at the time of trial, and the nature and extent of the testimony to be offered by or through the witnesses. The court held that the compelled disclosure of the identity of nonexpert witnesses intended to be called at trial violated the qualified work product protection doctrine, and that plaintiff made no showing of facts to overcome the qualified privilege. The court also held that pretrial discovery rules which allow the discovery of the identity of persons with knowledge of relevant facts does not sanction compelling the disclosure of nonexpert witnesses intended to be called at trial, as such a list of witnesses is a derivative product developed as a result of the initiative of counsel in preparing for trial. The court further held that compelled disclosure of the nonexpert witnesses' anticipated testimony violates the absolute work product privilege, as such an interrogatory clearly called for production of a writing reflecting the attorney's impressions, conclusions, and opinions.

Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. In an action regarding plaintiff's former employment, the trial court granted plaintiff's motion to compel defendants to provide further responses to interrogatories. Plaintiff had propounded California Judicial Council form interrogatories Nos. 12.1, 12.2, and 12.3. In response to No. 12.1, defendants provided the names of seven persons who witnessed or had knowledge of the circumstances surrounding the alleged incident. However, defendants objected to and refused to answer interrogatories requesting the identities of and information regarding individuals interviewed concerning the incident (No. 12.2) and individuals from whom written or recorded statements were obtained concerning the incident (No. 12.3), stating that defendants had conducted interviews with witnesses but that the requested information was protected by the attorney-client privilege and work product doctrine.

The Court of Appeal in Nacht ordered issuance of a writ of mandate directing the trial court to vacate that portion of its order granting plaintiff's motion to compel further responses to interrogatories Nos. 12.2 and 12.3, to enter a new order denying plaintiff's motion to compel further response to interrogatory No. 12.2, and to take further action regarding interrogatory No. 12.3. The court held that, as to interrogatory No. 12.2, compelled production of a list of potential witnesses interviewed by opposing counsel violated the work product doctrine, since production of the information would necessarily reflect counsel's evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident counsel deemed important enough to interview. As to interrogatory No. 12.3, the court held that the trial court should have compelled a further response only to the extent that defendants' counsel obtained an independently written or recorded statement from one or more of the employees interviewed by counsel. Notes counsel had taken during interviews were protected by the work product doctrine, but witnesses' independently prepared statements that were submitted to defense counsel were not protected by the work product doctrine.

DISCUSSION

The decision as to which potential witnesses to interview is within the attorney work product privilege, because it reflects the attorney's evaluation the importance of such potential witnesses to his case. Therefore, the identities of specifically who has been interviewed is protected by CCP § 2018.

"Compelled production of a list of potential witnesses interviewed by opposing counsel would necessarily reflect counsel's evaluation of the case by revealing which witnesses or persons who claimed knowledge of the incident (already identified by defendants' response to interrogatory No. 12.1) counsel deemed important enough to interview. (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 73 [compelled production of list of witnesses to be called at trial impermissibly reveals counsel's evaluation of the strengths and weaknesses of his case].)" (Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217.)

Disclosure of an attorney's decision not to interview a potential witness serves to encourage the opposing side to ignore that person. This is contrary to public policy to foster diligent preparation of prosecutions and defenses. Also, an attorney would be encouraged to wait until the other side communicated with potential witnesses and then demand disclosure of the substance of those communications. This preying upon the opponents industrious discovery is an abuse of discovery. Therefore, the identities of who and who has not been interviewed is protected by CCP § 2018.

Besides protecting the privacy necessary for representation, the Code of Civil Procedure Section 2018 also seeks "to prevent an attorney from taking undue advantage of his adversary's industry or efforts." In City of Long Beach, the court began by quoting Moore's Federal Practice, which discussed the elimination of the "sporting theory of litigation." The court then held, at 75, that some information should remain protected in the interest of fostering diligence on both sides:

"We are not convinced that the sporting theory of litigation must be so entirely eliminated. Diligence in preparing one's own case, rather than depending on an adversary's efforts, is a value expressly approved in the statutory policy statement of Code of Civil Procedure section 2016, subdivision (g). (City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 74.)"

It is this state's policy to preserve the degree of privacy necessary to encourage an attorney to investigate not only the favorable but also the unfavorable aspects of their cases. If an attorney were required to reveal the substance of communications with potential witnesses, the attorney would not be likely to communicate with persons who might hurt her case. Therefore, the identities of who and who has not been interviewed and the substance of our communications are protected by CCP § 2018(a).

Defendants essentially are asking for the identities of persons who have knowledge of various specific facts in dispute. The defendants know, or is in a better position to know, whom and whom are not potential witnesses. More specific identifications of witnesses would require the plaintiff to disclose from which of those witnesses they obtained statements pertaining to those specific facts. In essence, this demand results in the disclosure of the identities of persons from whom statements were taken, and also the substance of their statements. Therefore, defendants must be seeking to obtain plaintiffs' privileged attorney work-product.

If such requests were to be enforced, the threat of disclosure would have a chilling effect on an attorney's willingness to "investigate not only the favorable but the unfavorable aspects of such cases". (CCP § 2018.) Nacht drew a distinction as to which types of communications with potential witnesses were discoverable. The court stated, at 217-218:

"A list of the 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. Moreover, any such notes or 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" within the meaning of Code of Civil Procedure section 2018, subdivision (c). (People v. Boehm (1969) 270 Cal.App.2d 13, 21-22 [75 Cal.Rptr. 590].)

"On the other hand, a list of potential witnesses who turned over to counsel their independently prepared statements would have no tendency to reveal counsel's evaluation of the case. Such a list would therefore not constitute qualified work product. Moreover, unlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney's evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product. (See, e.g., Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647-648 [151 Cal.Rptr. 399]; Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 822-823 [107 Cal.Rptr. 720]; People v. Boehm, supra, 270 Cal.App.2d at p. 21.)"

The very essence of the plaintiffs' causes of action is the conduct of the propounding defendants. The facts are most intimately known by the propounding defendants, and therefore are equally, if not more, available to the asking parties. Such requests are burdensome, oppressive and harassing, and seek to take undue advantage of the plaintiffs' and plaintiffs' counsels' industry and efforts. There are no concealed witnesses or information which defendants have sought to discover.

In the present case, the defendant has requested that the plaintiffs reveal whom they have interviewed, and defendants have inquired into the substance of communications between plaintiffs and the interviewed person. Defendants already have access to all witnesses and documents, and they have not shown that any of the potential witnesses are inaccessible, which fact might show sufficient hardship to allow discovery of their statements.

The decision as to which potential witnesses to interview reveals an attorney's evaluation or mental impression of their importance to her case. The revelation of who the plaintiff has interviewed and the substance of his communications would allow defendant to take unfair advantage of our industry and efforts. If such interrogatories were enforced, litigants would be encouraged to wait until their opponents did their investigations and then merely propound interrogatories as to which people knew which facts, greatly simplifying that litigants tasks. Finally, as a matter of public policy, the knowledge of who the plaintiff has not interviewed would encourage defendants to overlook those witnesses, and promote laziness rather than diligent preparation of cases.

This letter is not an attempt at obstruction, but it is an informal attempt to resolve differences without resort to judicial intervention. Please respond as soon as possible if you feel that there has been an oversight or any misapplication of the authority cited. Also, please direct us as to which documents you believe you still need and, perhaps, provide a short explanation as to why defendants do not have such documents.

With our regards,
MACHADO & COUSINS
 

Troy Kevin Spears
Attorney at Law