in brief: Coito v. Superior Court may alter the way in which information is gathered in some class actions
Friday, March 5, 2010 at 12:19PM 
Yesterday, in Coito v. Superior Court (March 4, 2010), the Court of Appeal (Fifth Appellate District) addressed an issue that nominally concerned the collection of evidence in a wrongful death lawsuit naming California as one defendant. The facts are particularly sad in that the case involved the death of a child, but, then, the facts of all wrongful death cases are sad. The issue addressed in Coito is whether an attorney's collection of a witness statement after the attorney selected the witness to interview is work product (absolute or qualified). Coito holds that even attorney-collected statements are not, unless the attorney's independent thoughts and analysis are inextricably intertwined with the statements of the witness. The majority is exceedingly critical of Nacht & Lewis Architects, Inc. v. Superior Court, 47 Cal.App.4th 214 (1996), a case frequently relied upon to shield putative class member declarations from discovery. Coito puts that argument in jeopardy. I may be wrong, but I think that this decision may affect the manner in which putative class members are handled during interviews by counsel on both sides. The case, and especially the long and thoughtful concurring and dissenting opinion, deserves more attention than I can provide today, so I may post a longer comment over the weekend.
Reader Comments (1)
Though it seems that Coito v. Superior Court appears on its face to erode the Attorney Work Product doctrine, Coito is more in line with California Code of Civil Procedure Sections 2018.01 et seq. which codifies California's Attorney Work Product policy. Specifically California Civil Code Section 2018.030(b) states that “[t]he work product of an attorney, other than a writing [that reflects an attorney's impressions, conclusions, opions or theories] is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice."
Furthermore, The basic purpose of the1986 Discovery Act was to take the “game” element out of trial preparation by enabling the parties to obtain evidence necessary to evaluate and resolve their dispute beforehand. See Weil and Brown, Cal Prac. Guide: Civil Procedure Before Trial (TRG 2006) ¶ 8:1, citing Greyhound Corp. v. Superior Court (1961). Instead responding parties has used Nacht & Lewis to not answer not only Form Interrogatory 12.2, but other interrogatories in the 12.0 series. Parties should, at a minimum, be able to find out who has been interviewed and who has given a statement. Whether or not the written statement or the recorded statement should be disclosed can be determined by a showing of good cause and an in camera hearing pursuant to CCP Section 2018.060.
California Supreme Court granted review on June 9, 2010 so there will be a much needed determination. In the meantime, Coito will not be citable due to California's Rules of Court.