Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 169 courts had “concluded an ongoing employer-employee relationship between the class opponent and putative class members is inherently conducive to coercive influence.”859 Barriga then stated that “[e]ven if we were to disagree with the courts that have concluded a current employeremployee relationship between the class opponent and putative class members is inherently coercive, we cannot ignore the reality that such a relationship carries a heightened potential for coercion and abuse, and courts should be cognizant of the imbalance of power and interests when carefully reviewing employee statements.”860 After Barriga, employers who obtain declarations from current employees to use in opposing class certification should expect plaintiffs’ counsel to increase their efforts to challenge the declarations on the basis that they were obtained through coercive, abusive tactics. Indeed, employers should anticipate arguments that it is inherently coercive to obtain declarations from current employees, especially when this is done in the workplace during work shifts. When declarations are obtained under such circumstances, employers should be sure to painstakingly follow the Johnnie’s Poultry safeguards, discussed above, and to carefully document these efforts. In particular, maintaining a record that employees were clearly told in advance that participation in interviews was voluntary and made aware of the purpose of the interviews (such as emails sent to employees by local HR representatives) should go a long way towards demonstrating a lack of coercion. 2. Protection Of Attorney Procured Witness Interviews From Discovery Once employers and their counsel have invested time and expense to gather witness statements, they face yet another hurdle: attempts by plaintiffs’ counsel to discover defense counsel’s hard-earned declarations. Defense counsel often prefer not to disclose these declarations before filing them with the court when opposing class certification.861 In withholding declarations, defense counsel can cite a California Supreme Court decision, discussed below, which affirms that attorney-directed internal investigations and statements taken from witnesses are entitled to at least a qualified work product protection. For years, litigants in California had relied upon dicta in Nacht & Lewis Architects, Inc. v. Superior Court862 for the proposition that recorded witness statements taken by an attorney or his agent are entitled to absolute work product protection and thus, are not discoverable. In 2010, however, the Court of Appeal in Coito v. Superior 859 Id. at 326 (citing Pacheco v. Aldeeb, 127 F. Supp. 3d 694, 698 (W.D. Tex. 2015) (“‘Speech between parties with an ongoing business relationship is inherently conducive to coercive influence, and an employer-employee relationship is a salient example of this type of ongoing business relationship.’”)); Piekarski v. Amedisys Illinois, LLC, 4 F. Supp. 3d 952, 955 (N.D. Ill. 2013) (“[W]here there is an ongoing business or employment relationship between the class and the class opponent, communications may be inherently coercive.”); Bublitz v. E.I. duPont de Nemours & Co., 196 F.R.D. 545, 548 (S.D. Iowa 2000) (“Where the defendant is the current employer of putative class members who are at-will employees, the risk of coercion is particularly high; indeed, there may in fact be some inherent coercion in such a situation.”). 860 Id. at 335. 861 Note that in federal court, pursuant to Rule 26 of the Federal Rules of Civil Procedure, such declarations usually must be disclosed shortlyafter they are executed. One way to comply with this requirement is to prepare declarations that are in final form but not signed, and then have the witnesses execute them when they are needed. A risk inherent in this approach, of course, is that witnesses may change their minds about signing declarations, or that witnesses may no longer be readily available or accessible. 862 47 Cal. App. 4th 214, 217 (1996).
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