Nacht & Lewis Architects, Inc. v. Superior Court may be the most widely cited case in California. It seems to appear in most responses to Form Interrogatory Nos. 12.2 and 12.3 to justify refusing to produce recorded interviews of witnesses, any resulting attorney notes, or a list of interviewed witnesses. Now those numerous discovery responses may be in question. In Coito v. Superior Court, [pdf] California’s Fifth District Court of Appeal considered and rejected Nacht, holding in a divided decision that attorney notes from witness interviews and the list of those interviewed will often be discoverable.
These conflicting decisions leave two crucial questions unresolved. 1) Do the questions asked by counsel in an interview reveal counsel’s impressions, conclusions, opinions, or theories? 2) Does the selection of who to interview reveal the same? Coito says not usually to both, Nacht says yes. Given the frequency in which these issues arise, the state Supreme Court may be asked to intervene to clarify the issue and provide clear guidelines for California litigators and overworked trial courts.