NACHT LEWIS ARCHITECTS, INC. v. SUPERIOR COURT

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Docket Number

Docket No. C023308.

Attorney(S)

COUNSEL Cook, Brown, Rediger Prager, Robert L. Rediger and Terry A. Wigen for Petitioners. No appearance for Respondent. Weintraub, Genshlea Sproul, Kevin R. Iams and David W. Tyra for Real Party in Interest.

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Smart Summary

Factual and Procedural Background

Real party in interest (plaintiff) filed a civil complaint against petitioners (defendants) regarding her former employment with defendant Nacht Lewis Architects, Inc. During discovery, defendants responded to Judicial Council form interrogatory No. 12.1 by providing names of seven persons who witnessed or had knowledge of the "incident" underlying the lawsuit. However, defendants objected and refused to answer interrogatories Nos. 12.2 and 12.3, which requested the identity of individuals interviewed concerning the incident and those from whom written or recorded statements were obtained. Defendants asserted attorney-client privilege and work product doctrine to protect this information. The respondent Superior Court granted plaintiff’s motion to compel further responses to these interrogatories. Petitioners appealed that order.

Legal Issues Presented

Whether the trial court erred in compelling defendants to disclose the identities of individuals interviewed by defendants’ counsel concerning the incident (form interrogatory No. 12.2), considering the qualified work product privilege.
Whether defendants must disclose the identities of individuals from whom written or recorded statements were obtained concerning the incident (form interrogatory No. 12.3), and the extent to which such statements are protected by the work product doctrine.

Arguments of the Parties

Petitioners' Arguments

The court’s order compelling further response to interrogatory No. 12.2 violates the qualified work product privilege because disclosure would reveal counsel’s evaluation of the case by identifying who counsel deemed important enough to interview.
The information collected from interviews is protected by attorney-client privilege and work product doctrine and should not be disclosed.
Defendants did not record notes or statements themselves but collected information from interviews, and thus some information may be protected.

Real Party in Interest's Arguments

The plaintiff contended that compelled response to interrogatory No. 12.2 is necessary to learn the identities of all percipient witnesses.
However, the court noted that defendants had already provided the identities of all percipient witnesses in response to interrogatory No. 12.1, making this assertion erroneous.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 73	Compelled production of a list of witnesses to be called at trial impermissibly reveals counsel's evaluation of case strengths and weaknesses.	Supported the conclusion that forcing disclosure of identities of persons interviewed by counsel (interrogatory No. 12.2) would reveal counsel’s mental impressions and is protected work product.
People v. Boehm (1969) 270 Cal.App.2d 13, 21-22	Attorney’s notes or recorded statements revealing impressions, conclusions, opinions, or legal research are absolutely protected work product under Code Civ. Proc. § 2018(c).	Confirmed that interview notes or recorded statements taken by counsel are absolutely privileged and protected from disclosure.
Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647-648	Statements independently prepared by witnesses are not protected as work product.	Supported the distinction that independently prepared witness statements are not shielded by work product privilege even if turned over to counsel.
Kadelbach v. Amaral (1973) 31 Cal.App.3d 814, 822-823	Witness statements are not privileged merely because they are transmitted to counsel.	Reinforced that independently prepared statements must be disclosed regardless of their transmission to attorneys.
Smith v. Superior Court (1961) 189 Cal.App.2d 6, 12	Names and addresses of witnesses known only to attorneys must be disclosed on proper interrogatories.	Supported the principle that attorney-client privilege cannot shield identities of potential witnesses.
Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004	Attorney-client privilege does not shield facts underlying communications that are otherwise discoverable such as witness identities.	Confirmed that identities of potential witnesses are discoverable despite attorney-client privilege claims.
Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5	Pretrial review requires a showing of harm or denial of discovery.	Used to justify denial of defendants’ motion to compel further responses, as no harm or denial of discovery was shown.
Wagner v. Superior Court (1993) 12 Cal.App.4th 1314, 1317	Same as Sav-On Drugs regarding pretrial review and showing of harm.	Supported the court’s refusal to consider defendants’ motion for pretrial review.
Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171	Procedural requirements for issuing peremptory writ of mandate in the first instance.	Authorized the appellate court to issue a peremptory writ of mandate directly.

Court's Reasoning and Analysis

The court analyzed the scope of the attorney work product privilege in relation to the discovery requests. It held that compelled disclosure of the identities of individuals interviewed by defendants’ counsel (interrogatory No. 12.2) would reveal counsel’s mental impressions and evaluation of the case, thus protected as qualified work product. This conclusion was supported by precedent indicating that revealing which witnesses counsel deemed important to interview would disclose strategic case assessments.

Regarding interrogatory No. 12.3, the court distinguished between statements recorded or prepared by counsel during interviews (protected as absolute work product) and independently prepared written or recorded statements by witnesses. The latter do not reflect counsel’s evaluation or constitute derivative material and therefore are not protected. The court instructed that further response to interrogatory No. 12.3 should be compelled only to the extent defendants’ counsel obtained independently prepared statements from employees.

The court rejected defendants’ attempt to shield independently prepared witness statements by transmission to counsel, reaffirming that such statements remain discoverable. The court also declined to review defendants’ motion to compel further responses as defendants failed to show harm or denial of discovery, and noted that defendants could obtain information from plaintiff via special interrogatories.

After complying with procedural requirements for extraordinary writ relief, the appellate court exercised its authority to issue a peremptory writ of mandate directing the trial court to vacate its prior order compelling further responses to interrogatories Nos. 12.2 and 12.3, deny further response to No. 12.2, and reconsider No. 12.3 consistent with the opinion.

Holding and Implications

The court’s holding is as follows: The order compelling defendants to provide further responses to interrogatory No. 12.2 is reversed and defendants are not required to disclose the identities of individuals interviewed by their counsel, as such disclosure violates the qualified work product privilege. Further, the trial court must reconsider the motion to compel as to interrogatory No. 12.3 and require disclosure only of independently prepared written or recorded statements obtained from employees, which are not protected by the work product doctrine.

The direct effect of this decision is to protect defendants’ attorney mental impressions regarding witness interviews while ensuring that independently prepared witness statements remain discoverable. No new precedent was established beyond clarifying the application of existing work product principles to these specific interrogatories. The plaintiff retains access to the identities of all percipient witnesses through prior interrogatory responses.

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NACHT LEWIS ARCHITECTS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; LINDA McCORMICK, Real Party in Interest.

OPINION

PUGLIA, P.J.

Real party in interest (plaintiff) filed a civil complaint against petitioners (defendants) regarding her former employment with defendant Nacht Lewis Architects, Inc. In response to Judicial Council approved form interrogatory No. 12.1, defendants provided the names of seven persons who witnessed, or who defendants claimed had knowledge of, the "incident," defined as "the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding." However, defendants objected to and refused to answer interrogatories requesting the identity of and information regarding individuals interviewed concerning the incident (form interrogatory No. 12.2) and individuals from whom written or recorded statements were obtained concerning the incident (form interrogatory No. 12.3). Defendants' responses to interrogatories Nos. 12.2 and 12.3 were identical: "Counsel for the Defendants has conducted interviews of employees of Nacht Lewis Architects. The information collected from the interviews is protected by the attorney-client privilege and work product doctrine."

By order dated March 7, 1996, the respondent court granted plaintiff's motion to compel further responses to interrogatories Nos. 12.2 and 12.3. (1) Defendants contend the court's order violates the qualified work product privilege. We agree the respondent court erred in compelling further response to interrogatory No. 12.2. 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. (Cf. City of Long Beach v. Superior Court (1976) 64 Cal.App.3d 65, 73 [ 134 Cal.Rptr. 468] [compelled production of list of witnesses to be called at trial impermissibly reveals counsel's evaluation of the strengths and weaknesses of his case].) (2) The issue is more subtle as to interrogatory No. 12.3. In their response to that interrogatory defendants did not state that their attorney took notes or otherwise recorded his interviews with employees of Nacht Lewis, but that their attorney collected information from the interviews. Though imprecise, the language is susceptible to the interpretation that defendants' counsel collected from the employees statements the employees had previously written or recorded themselves.

Although the precise issue of interrogatory responses revealing the identities of persons interviewed by opposing counsel has not been addressed in a published opinion in this state, federal decisions have uniformly reached the conclusion that we reach here. (See, e.g., Laxalt v. McClatchy (D.Nev. 1987) 116 F.R.D. 438, 443; Com. of Mass. v. First Nat. Supermarkets, Inc. (D.Mass. 1986) 112 F.R.D. 149, 152-154; Board of Educ. of Evanston Tp. v. Admiral Heating (N.D.Ill. 1984) 104 F.R.D. 23, 32.)

The distinction is significant. 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 respondent court should compel further response to interrogatory No. 12.3 only to the extent the court determines defendants' counsel obtained an independently written or recorded statement from one or more of the employees interviewed by counsel.

Defendants cannot shield independently prepared witness statements by having their employees turn such statements over to defendants' attorney during his interviews with the employees. As we suggested in Kadelbach v. Amaral, supra, 31 Cal.App.3d at page 822, a witness statement is not brought within the work product privilege by transmitting the statement to the attorney. (See also Smith v. Superior Court (1961) 189 Cal.App.2d 6, 12 [ 11 Cal.Rptr. 165, 88 A.L.R.2d 650] ["Even if the names and addresses of the witnesses were known only to the attorneys, they would have to be disclosed on a proper interrogatory addressed to the party."]; Aerojet-General Corp. v. Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004 [ 22 Cal.Rptr.2d 862] [attorney-client privilege cannot be used to shield facts underlying communications that are otherwise subject to discovery, such as the identity of potential witnesses].)

Finally, we decline to consider whether the respondent court erred in denying defendants' motion to compel further responses to interrogatories. Defendants fail to demonstrate harm sufficient to warrant pretrial review, i.e., no privilege has been threatened, and defendants have not been denied discovery in that they may serve plaintiff with special interrogatories to obtain the information they seek. ( Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5 [ 123 Cal.Rptr. 283, 538 P.2d 739]; Wagner v. Superior Court (1993) 12 Cal.App.4th 1314, 1317 [ 16 Cal.Rptr.2d 534].)

We have previously notified the parties we were considering issuing a peremptory writ of mandate in the first instance, stayed the order compelling defendants' further responses to interrogatories Nos. 12.2 and 12.3, and provided plaintiff with the opportunity to file opposition to the petition. Having complied with the procedural requirements delineated in Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893], we are authorized to issue a peremptory writ of mandate in the first instance.

Plaintiff's opposition erroneously asserts that a compelled response to interrogatory No. 12.2 is her sole avenue to learn the identities of all "percipient witnesses." To the contrary, defendants have provided plaintiff with the identities of all "percipient witnesses" by responding to interrogatory No. 12.1.

Let a peremptory writ of mandate issue directing the respondent superior court to vacate that portion of its order filed March 7, 1996, 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 consistent with this opinion regarding interrogatory No. 12.3. Upon this decision becoming final, the stay previously issued is vacated.

Sims, J., and Scotland, J., concurred.