Judge: H. Jay Ford, III, Case: 23SMCV05799, Date: 2025-04-15 Tentative Ruling

Case Number: 23SMCV05799    Hearing Date: April 15, 2025    Dept: O

 Case Name:  McIntyre v. National Academy of Recording Arts, et al.

SUBJECT:                 MOTION TO COMPEL FURTHER FROG NO. 12.2

MOVING PARTY:   Plaintiff Terri McIntyre

RESP. PARTY:         Defendant Charles Michael Greene

TENTATIVE RULING

Plaintiff Terry McIntyre's Motion to Compel Further Responses to Form Interrogatory (FROG) No 12.2 as to Defendant Charles Michael Greene is GRANTED. Defendant fails to meet their initial burden to make a foundational showing that the requested information is privileged.

            Defendant Charles Michael Greene is to provide further responses to Plaintiff’s Form Interrogatory 12.2 without objection within 10 days.

REASONING

Plaintiff filed the motion along with a required separate statement on 2-20-25. Defendant filed and oppo on 3-26-25, and Plaintiff filed a reply on 4-8-25. An IDC was scheduled for 4-14-25, but taken off calendar. Plaintiff served Defendant with FROGS on 8-22-24, with Defendant serving responses on 10-15-24. (Lang Decl., ¶ 4.) The parties met and conferred regarding discovery responses leading to Defendant initially supplementing their responses on 12-27-24. and then further supplementing the response to FROG 12.3 on 2-17-25. (Ibid.)

FROG 12.2 seeks the disclosure of the identity of witnesses Defendant or its counsel have interviewed concerning “the incident.” In reliance on Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217 (“Nacht”), Defendant objects to the disclosure of the identity of witnesses counsel interviewed because "[d]efense counsel’s efforts to investigate and defend against these claims, including attempts to narrow the universe of what Plaintiff is even alleging, are necessarily a direct reflection of its theories, strategies, research, impressions, conclusions, and opinions," thus "[t]he information sought by Plaintiff is protected work product. (See Cal. Code Civ. Proc., § 2018.030.)." (Defendant Separate Statement, pp. 6:1–9.)  Defendant argues that because the Complaint does not specifically state witness names, dates, or locations for the alleged acts the Defendants efforts to investigate and defend against the claims become a direct reflection on Defendant’s counsels’ thoughts and strategies, thus protected by absolute work product privilege Defendant objects on the grounds the disclosure of such information is privileged under the holding of protected argues that Defendant's response to FROG 12.2 is insufficient because Defendants attorney-client privilege, attorney-work product privilege, and or privacy rights objections are without merit.

The Court in Nacht stated, “[The] [c]ompelled 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 12.1) counsel deemed important enough to interview.  (Id. at 217.)  The Nacht Court further reasoned, “[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. (Ibid.) “[U]nlike 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.” (Id., at p. 218.)

            In Coito v. Superior Court (2012) 54 Cal.4th 480, 486, the Court significantly limited the holding of Nacht:  

“As to the identity of witnesses from whom defendant's counsel has obtained statements, we hold that such information is not automatically entitled as a matter of law to absolute or qualified work product protection. In order to invoke the privilege, defendant must persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege) or would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege).”

(Coito v. Superior Court (2012) 54 Cal.4th 480, 486.)

The Coito court did note that “in some cases, the very fact that the attorney has chosen to interview a particular witness may disclose important tactical or evaluative information, perhaps especially so in cases involving a multitude of witnesses.” (Id. at p. 495.) Under Nacht, as narrowed by Coito, therefore, the identity of witnesses interviewed by counsel may be  considered qualified work product. (Nacht, supra, 47 Cal.App.4th at p. 217.)  The Defendant seeking to withhold qualified work product must first make a foundational showing that the material sought should be privileged.  Here, Defendant does not submit a declaration or any evidence to support the preliminary foundational showing the names of witnesses interviewed by counsel are privileged. Nor do Defendants provide any authority to show that burden can be met without evidence.   Given Defendants have not met their foundational burden, the Plaintiff does not need to show they are prejudiced by the non-disclosure.