©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 131 Meanwhile, California added a new immigrant protection: no party can disclose an individual’s immigration status in open court, unless the party first persuades a judge in a private hearing that the evidence is relevant and admissible.550 5.18 Employer’s Attorney-Client Privilege In America generally, an employer can secure a confidential written opinion from an outside law firm and have the firm interview the employer’s employees to learn facts needed to prepare the opinion, all without the fear that later, in litigation, the employer’s legal adversaries can discover what facts the law firm relied upon in rendering its legal advice. That principle applies in California, too, but only because the California Supreme Court granted extraordinary relief to correct the errors of two levels of lower courts. In one wage and hour class action challenging the classification of managers as exempt from overtime pay, the Court of Appeal ruled that it would not disturb a trial-court order that the defendant must turn over to a discovery referee an opinion letter that the defendant had secured from a law firm, for the purpose of having the referee redact out and reveal to the plaintiffs the “facts” that the law firm had relied upon in rendering its legal advice.551 The California Supreme Court eventually issued a ringing endorsement of the attorney-client privilege, recognizing that confidential attorney-client communications are protected from discovery in their entirety, regardless of whether the facts contained therein are otherwise discoverable, and that courts cannot compel parties to submit documents to in camera review to determine whether the communication is privileged.552 5.19 Limits to Protection for Attorney Work Product Employers defending lawsuits often have defense counsel interview witnesses to investigate the plaintiff’s claims. The plaintiff’s counsel then asks the defendant employer, during pre-trial discovery, to serve up on silver platter the fruits of the defense counsel’s investigation. In a 2012 case, Coito v. Superior Court (State of California), the California Supreme Court addressed the degree of protection that courts should give to work product that an attorney creates while obtaining evidence from witnesses.553 In Coito, the defendant employer argued that both the identities of attorney-selected interviewees and the recorded witness statements were necessarily attorney work product (and thus could be withheld from the plaintiff).554 Coito made two relevant rulings. The first was that the identities of attorney-selected witnesses must be disclosed unless disclosure of them would “reveal the attorney’s tactics, impressions or evaluation of the case, or would result in opposing counsel taking undue advantage of the attorney’s industry or efforts.”555 The second ruling, more favorable to defendants, recognized that a witness statement obtained through an attorney-directed interview deserves “at least qualified work product protection.” Coito held that the party seeking the witness statements must show that withholding them would be unjust. Coito also stated that the statements potentially could be subject to an absolute work product protection, if the statements reflected “an attorney’s impressions, conclusions, opinions, or legal research or theories.”556 Whether an investigation by outside counsel is privileged can depend on whether counsel is performing a legal function or a purely business one.557 A factual investigation conducted by outside counsel that does not provide legal advice to the employer could nevertheless be subject to both the attorney-client privilege and attorney work product doctrine if outside counsel was not merely gathering information, but using expertise to “identify pertinent facts, synthesize the evidence, and come to a conclusion of what actually happened.”558
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