DISCOVERY CASE OUTLINE
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ATTORNEY WORK PRODUCT

CONTENTS

CASES

CASE OUTLINE

Deposition
Interrogatory
Document
Admission
Experts
Med.Exam Sanctions Meet & Confer Disc.Cutoff Referee
Basic Disc
E-discovery
Atty.- Client
Work Product
Privacy
Phys-Patient
Med.Qual.Rev
Reporter Priv
Official Info
Tax Return





CONTENTS


STATUTORY BASIS & DEFINITION
CASES
PURPOSE
BURDEN OF PROOF

Work Product
Injustice
Waiver or Exception
In camera inspection

NATURE OF WORK PRODUCT

Attorney requirement

Holder of privilege is attorney
Legal work: limit protection to legal work
Prior work: no protection for work done prior to attorney involvement
Agents of attorneys within work product protection
Experts
Investigators
Investigative efforts of corp. employees
Facts etc. not protected by transmission to attorney

Client right to assert
Litigation requirement
Writing requirement
Absolute Work Product [C.C.P.§2018.030(a)]

C.C.P. 2018(c)
Waiver of Absolute Work Product
Writings:

Qualified Work Product [C.C.P.§2018.030(b)]

C.C.P. 2018(b)
Concept not defined
Interpretative, derivative material from attorney; not evidentiary

EXAMPLES OF WORK PRODUCT

Attorney Opinion Letter
Interrogatories requiring the disclosure of work product
Prior efforts / current attorney analysis
Witnesses to be called at trial
Witnesses interviewed by attorney
Attorney / Investigator notes of witness interviews
Diagrams & charts
Audit reports
Investigator's efforts
Experts

Consultant / Expert Witness distinction
Consultant's work is protected as work product
Waiver by election to inject opinion as issue in law suit
Withdrawal of waiver by election not to call
Good cause to depose expert
Depositions of Experts
Observations of expert
Information conveyed by attorney or party
Opinions & conclusions of experts
Test conducted is proper inquiry
Expert Reports

Qualified Work Product, show injustice/unfair prejudice/good cause
Absolute Work Product
Not Work Product

EXAMPLES OF MATTERS NOT WORK PRODUCT

Facts: source of facts not a factor
Identity of persons with knowledge of facts
Potential Expert Witness Identity
Witness statement
Party's statement to insurance co. investigator

WAIVER OF WORK PRODUCT PROTECTION

Procedure
Procedures for resolving issues
Conduct inconsistent with claim
Failure to timely assert
Intent to waive
Disclosure by attorney without coercion
Disclosure to client not a waiver
Disclosure to agent of client
Joint Defense Doctrine: Disclosure to codefendant's attorney
Inadvertent disclosure
Tender of issue
Medical experts C.C.P. 2032

EXCEPTIONS

Breach of duty
Crime - Fraud exception inapplicable

STATUTORY BASIS & DEFINITION

C.C.P. §2018
Former C.C.P. §2016(b) [Note C.C.P. §2018.040---no intent to change law]

CASES

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.)(2003), 113 Cal. App. 4th 1377
Aetna Cas. & Surety Co. v. Superior Court
(1984), 153 Cal.App.3d 467
Aerojet General v. Transport Indemnity Ins. (1993), 18 Cal.App.4th 996
Alpha Beta Co. v. Superior Court (1984), 157 Cal.App.3d 818
American Mutual Liab. Ins. Co. v. Superior Court (1974), 38 Cal.App.3d 579
Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240
Bank of Orient v. Superior Court (1977), 67 Cal.App.3d 588
Beesley v. Superior Court (1962), 58 Cal.2d 205
Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181 
Borse v. Superior Court (1970), 7 Cal.App.3d 286,
Bolles v. Superior Court (1971), 15 Cal.App.3d 962
Bro-Tech Corp. v. Thermax, Inc.,2008 WL 724627 (E.D. Pa. 3/17/08)
Brokopp v, Ford Motor Co.(1977), 71 Cal.App.3d 841
Brown v. Superior Court (1963), 218 Cal. App.2d 430,
Burke v. Superior Court (1969), 71 Cal.2d 276, 285
Christy v. Superior Court (1967), 252 Cal.App.2d 69
City & County of San Francisco v. Superior Court (1982), 130 Cal.App.3d 481
City of Los Angeles v. Superior Court (1985), 170 Cal.App.3d 744
City of Long Beach v. Superior Court (1976), 64 Cal.App.3d 65
County of Los Angeles v. Superior Court (1990), 222 Cal.App.3d 647
Clark v. Superior Court (1960), 177 Cal.App.2d 577, 580
Coito v. Superior Court (2012), 54  Cal.4th 480 v. Superior Court (2012), 54  Cal.4th 480 
Collette v. Sarrasin (1920), 184 Cal. 283
Dow Chemical Co. v. Superior Court (1969), 2 Cal.App.3d 1 at p.9.
Dowden v. Superior Court (1999), 73 Cal.App.4th 126
Dowell v. Superior Court (1956), 47 Cal.2d 483
Eddy v. Fields (2004), 121 Cal.App. 4th 1543
Fellows v. Superior Court (1980), 108 Cal.App.3d 55
Fireman's Fund Ins. Co. v. Superior Court
(2011), 196 Cal. App. 4Th 1263
Garrett v. Coast Fed Sav. & Loan
(1984), 136 Cal.App.3d 266
Grand Lake Drive-In v. Superior Court (1960), 179 Cal.App.2d 122.
Greyhound Corp. v. Superior Court (1961), 56 Cal.2d. 355, 399-401
Hobbs v. Municipal Court (1991)233 Cal.App.3d 670
Jasper Construction Co. v. Foothill Jr. College Distr. (1979), 91 Cal.App.3d 1
Jeanette H. (1990), 225 Cal.App.3d 25
Kadelbach v. Amaral (1973), 31 Cal.App.3d 814
Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217
Kennedy v. Superior Court (1998), 64 Cal.App. 4th 674
Kenney v. Superior Court (1967), 255 Cal.App.2d 106
Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405
Kizer v. Selnick (1988), 202 Cal.App.3d 431
Laguna Beach County Water District v. Superior Court (2004), 124 Cal. App. 4th 1453
Lasky, Haas, Cohler & Munter v. Superior Court(1985), 172 Cal.App.3d 264
Lohman v. Superior Court (1978), 81 Cal.App3d 90
Mack v. Superior Court (1968), 259 Cal.App. 2d 7
Merritt v. Superior Court (1970), 9 Cal.App.3d 721
Metro-Goldwyn-Mayer Inc. v. Superior Court (1994), 25 Cal.App.4th 242
Meza v. H. Muehlstein & Co. (2009) ,  176 Cal.App.4th 969
Miller, Morton, Caillat & Nevis v. Superior Court (1985),depublished 169 Cal.App.3d 552
Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1
Mowry v. Superior Court (1962), 202 Cal.App.2d 229
Nacht & Lewis Architects, Inc. v. Superior Court (1996), 47 Cal.App.4th 214
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874
Petterson v. Superior Court (1974), 39 Cal.App.3d 267
Pillsbury Madison & Sutro v. Schectman (1997), 55 Cal.App.4th 1279
Poeple v. Boehm (1969), 270 Cal.App.3d 13
People v. Collie (1981), 30 Cal.3d 43
People v. Superior Court (Laff) (2001) 25 Cal.4th 703
People v. Superior Court(1995), 37 Cal.App.4th 1757
People v. Williams (1979), 93 Cal.App.3d 40
Popelka, Allard McCowan & Jones v. Superior Court (1980), 107 Cal.App.3d 496
Queen of Angels Hospital v. Superior Court (1976), 57 Cal.App.3d 370
Raytheon v. Superior Court (1989), 208 Cal.App.3d 683
Regents of the Univ. of California v. Superior Court (Aquila Merchant Services, Inc.) (2008), 165 Cal.App.4th 672 
Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807
Rodriquez v. McDonald Douglas (1978), 87 Cal.App.3d 626
Rumac Inc. v. Bottomley (1983), 143 Cal.App.3d 810
San Diego Prof. Asn. v.Superior Court (1962), 58 Cal.2d 194
Sanders v. Superior Court (1973), 34 Cal.App.3d 270
Sav-On Drugs, Inc. v. Superior Court (1975), l5 Cal.3d l.
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386
Schreiber v. Estate of Kizer (1999), 22 Cal.4th 31, 989 P.2d 720
Scotsman Mfg.Co. v. Superior Court (1966), 242 Cal.App.2d 527
Sheets v. Superior Court (1967), 257 Cal.App.2d 1
Shepherd v. Superior Court (1976), 17 Cal.3d 107
Shooker v. Superior Court (Winnick) (2003), 111 Cal. App. 4th 923
Sigerseth v. Superior Court (1972), 23 Cal.App.3d 427
Snyder v. Superior Court (Caterpillar, Inc.) (2007), 157 Cal.App.4th 1530
Southern Pacific Co. v. Superior Court (1969), 3 Cal.App.3d 195
South Tahoe Public Utility Distr. v. Superior Court (1979), 90 Cal App.3d 135
Suezaki v. Superior Court (1962), 58 Cal.2d 166, 178
Swartzman v. Superior Court (1964), 231 Cal.App.2d 205.
Tehachipi-Cummings Co.Water Distr. v. Superior Court (1968), 267 Cal.App.2d 42
Thompson v. Superior Court (1997), 53 Cal.App.4th 480
Tip Top Foods v. Lang (1972), 28 Cal.App.3d 533
Trade Center Properties Inc. v. Superior Court (1960), 185 Cal.App.2d 409
Unger v. LA Transit Lines (1960), 180 Cal.App.2d 172
Watt Industries v. Superior Court (1981), 115 Cal.App.3d 802
Walloping Health Networks, Inc. v. Superior Court (1997), 59 Cal.App.4th110
Wellpoint Health Networks v. Superior Court (1997), 59 Cal.App.4th 110
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990 P.2d 591
Williamson v. Superior Court (1978), 21 Cal.3d 829
Wilson v. Superior Court (1964), 226 Cal.App.2d 715

N.B. Federal cases not controlling The concepts of work product in federal law differ significantly from California law. For example, California law is not limited to litigation and federal law covers a broader array of persons than California which is generally limited to be an attorney's protection of the attorney's work.

See Coito v. Superior Court (2012), 54  Cal.4th 480   discussing derivation and legislative history of work product and possible legislative intent to be guided by existing federal law when the work product statute was enacted]
See B P Alaska Exploration at p. 1250
People v. Superior Court (1995), p.1771

N.B. Two types of work product: absolute and qualified; cases normally do not distinguish between the two

CONTENTS

CASES

CASE OUTLINE

TOP

CASE OUTLINE


PURPOSE

Legislative History

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

Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 130-133

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App. 4Th 1263


C.C.P. §2018.020

l. Preserve privacy in trial prep so as to encourage
a) thorough trial prep and
b) investigation of both favorable and unfavorable aspects of case
2.Prevent taking undue advantage of adversary's industry & efforts

Enable attorney to do work effectively

Brown v. Superior Court (1963), 218 Cal. App.2d 430,431

Protect attorney from opponent's scrutiny at will of his private papers, investigative labors, and research and thoughts resulting therefrom.

Jasper Constr. Co. v. Foothill Jr. College Distr. (1979), 91 Cal.App.3d 1,16 [Prevent incompetents from taking advantage of opponent's trial prep.]

Brown v. Superior Court (1963), 218 Cal. App.2d 430

Petterson v. Superior Court (1974), 39 Cal.App.3d 267

Reward attorney. diligence but not laziness

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

Hickman v. Taylor (1947), 329 U.S. 495, 516; 67 S.Ct 516 ["Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary."]

Greyhound Corp. v. Superior Court (1961), 56 Cal.2d. 355, p.401" The work product doctrine is predicated upon the necessity of so limiting discovery that the stupid or lazy practitioner may not take undue advantage of his adversary's efforts and prepare his case for trial through no efforts of his own. Such tactics should not be permitted. Some limitation is required in order to prevent such unfairness."

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BURDEN OF PROOF on party asserting: Evidentiary issue

WORK PRODUCT: on person claiming item is work product

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

BP Alaska Exploration v. Superior Court (1988) 199 Cal.App.3d 1240 at p. 1252 [party not faulted for failing to present evidence to trial court "when there was no apparent need to do so."]

Alpha Beta Co. v. Superior Court (1984), 157 Cal.App.3d 818 at p. 825

Fellows v. Superior Court (1980), 108 Cal.App.3d 55

Injustice: on person asserting to overcome qualified work product

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

Fellows v. Superior Court (1980), 108 Cal.App.3d 55

Waiver or Exception: on person asserting

In camera inspection [cf Evid. Code 915, amended eff. 2002 re in camera review]

Coito v. Superior Court (2012), 54  Cal.4th 480 .  Once a showing to support a claim of absolute work product is made as to a witness statement, the court must conduct an in camera inspection to determine if it is qualified or absolute. The SC did not refer to the evidence code provision.

Note amendment of Evidence Code §915 effective 2002: Court may not require in camera review to determine claim of absolute work product; in camera review may be conducted to determine claim of qualified work product if the court is unable to rule without disclosure. The following cases may be affected by the amendment of Evidence Code Section 915(a) and (b).

Fellows v. Superior Court (1980), 108 Cal.App.3d 55, p.68-70 [dictum re"required" ]

American Mutual Liab. Ins. Co. v. Superior Court (1974), 38 Cal.App.3d 579 [work product claim overruled without conducting in camera inspection]

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p.1261

Wellpoint Health Networks, Inc. v. Superior Court (1997), 59 Cal.App.4th110 [trial court authorized & court app approved]

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990 P.2d 591 [no in camera review of absolute work product except those transmitted and then to determine if transmission was in confidence; affirming 1997 decision reported at 57 C.R.2d 335 requiring in camera review; note statutory change in EC 915]

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476

Dowden v. Superior Court (1999), 73 Cal.App.4th 126 [ Court held work product could be asserted by pro per functioning as an attorney. Without deciding the work product issues the appellate court remanded the matter for the trial court to conduct an in camera review of a diary compiled pursuant to attorney instructions to determine if it contained work product stating "An in camera review is the proper method for determining whether specific items are subject to a work product privilege."]

Izazago v. Superior Court (1991), 54 Cal.3d 356, 382 [work product not discoverable in criminal cases]

Kaiser Foundation Hospitals v. Superior Court (1998) 66 Cal.App.4th 1217

Aetna Cas. & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467

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CASES

CASE OUTLINE

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NATURE OF WORK PRODUCT

Attorney requirement

Holder of privilege is attorney

Coito v. Superior Court (2012), 54  Cal.4th 480 [In discussing the applicability of Work Product to witness statements, the court emphasized the attorney involvement in making such decisions]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377  [Efforts of lawyer acting as claims investigator may not be protected. "Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product."]

BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240

Dowden v. Superior Court (1999), 73 Cal.App.4th 126[pro per may assert work product but matter discoverable from a represented party will be discoverable from the pro per]
 
Fellows v. Superior Court (1980), 108 Cal.App.3d 55

Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, at p. 411

Williamson v. Superior Court (1978) 21 Cal.3d 829, 834 [""Whatever the extent of the concept of an attorney's work product may be, it is clear that ... it is ... the attorney's work, or that of his agents or employees, that is involved ...." (Italics omitted.) (Wilson v. Superior Court (1964) 226 Cal.App.2d 715, 724 [38 Cal.Rptr. 255] [hg. den., May 27, 1964].)]

Lasky, Haas Cohler & Munter v. Superior Court (1985), 172 Cal.App.3d 264 [Attorney can assert absolute privilege against client in non- malpractice context & against client's adversaries; client fiduciary duty to adversaries doesn't affect]

Lohman v. Superior Court (1978), 81 Cal.App3d 90, at page101

Rumac Inc. v. Bottomley (1983), 143 Cal.App.3d 810 [work product aff'd.; attorney acting as such]

American Mutual Liab. Ins. Co. v. Superior Court (1974), 38 Cal.App.3d 579

CF Metro-Goldwyn-Mayer Inc. v. Superior Court (1994), 25 Cal.App.4th 242, at p.247 [Court of Appeal found the inequity of one side having critical information due to attorney who represented both in t/a taking position contrary to former client justified the application of the waiver doctrine.  Court notes line of cases holding client right to work product in context of obtaining files from former attorney. ]

Legal work: limit protection to legal work

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377[Dominant purpose test applies to capacity of attorney acting. "This "dominant purpose" test not only looks to the dominant purpose for the communication, but also to the dominant purpose of the attorney's work. (Aetna Causalty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475 (Aetna); Wellpoint, supra, 59 Cal.App.4th at pp. 121-122.) Thus, "the attorney-client privilege [would] not apply without qualification where the attorney was merely acting as a negotiator for the client [citation], or merely gave business advice [citation], or was merely acting as a trustee for the client [citation]." (Aetna, supra, 153 Cal.App.3d at p. 475.)"  "Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product"]

Watt Industries v. Superior Court (1981), 115 Cal.App.3d 802 [notes of attorney while acting as agent of party to business transactions not protected]

Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467, [Attorney investigating mudslide claim; at least some docs absolute work product ]

Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th110 [AC; outside attorney investigating employee claims requires communication by communication analysis]

Chicago Title Ins. Co.v. Superior Court (1985) [AC; house counsel performing non lawyer duties and spokesman for corp]

Montebello Rose Co. v. ALRB (1981), 119 Cal.App.3d 1 [attorney acting as labor negotiator]

Collette v. Sarrasin (1920), 184 Cal. 283

Prior work: no protection for work done prior to attorney involvement

Coito v. Superior Court (2012), 54  Cal.4th 480   [witness statements taken by defendant are not protected]

Wilson v. Superior Court (1964), 226 Cal.App.2d 715 at p. 724 [ work of investigator hired by insurance company prior hiring of attorney or filing of suit not protected]

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p. 274

Bank of Orient v. Superior Court(1977), 67 Cal.App.3d 588

Jasper Construction v. Foothill Jr. College Distr. (1979), 91 Cal.App.3d 1 [Consultant hired by party, did work, met with party 5 times and later met with attorney to report finding; exclusion of testimony on work product grounds was reversible error]

See below re investigative efforts

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CASE OUTLINE

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Agents of attorneys within work product protection

See below re experts, investigators, employees. See also Expert Case Outline

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377  ["Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product."]

Williamson v. Superior Court (1978), 21 Cal.3d 829, at p.834 [ Expert hired by attorney protected by qualified work product. "...it is clear that ...it is...the attorney's work, or that of his agents or employees, that is involved...." Citing Wilson and San Diego Prof. Assn]

Insurance Co. of North America v. Superior Court (GAF Corp.) (1980) 108 Cal.App.3d 758,  771, 166 Cal.Rptr. 880  ["It appears the trial court inadvertently required production of memorandums and notes of a paralegal in Gallagher's law firm present at the briefing [by attorney of client] of March 11, 1977. Such materials, the work product of Gallagher's law firm, are not discoverable. (Code Civ. Proc. § 2016, subds. (b) and (g).)]

Rodriquez v. McDonald Douglas(1978), 87 Cal.App.3d 626 at p.647[notes of investigator hired by attorney that reflected his thoughts and analysis are absolute work product]

People v. Collie (1981), 30 Cal.3d 43, at p. 59["...defense investigators report in criminal case protected but witness statement is not even if paraphrased; Quoting United States v. Nobles 422 U.S.225,238 attorneys must often rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself." ]

Wilson v. Superior Court (1964), 226 Cal.App.2d 715, at p.723 [No work product when investigator is not attorney's agent or emplyee. Investigator hired by insurance company before attorney hired or suit filed. Plaintiff's statement to defendant's investigator and the observations made by the investigator during the interview were not protected work product. Attorney cannot retroactively adopt work of investigator and convert the independent work of another already performed before the attorney was hired or the suit filed to work product]

Experts hired by attorney [see below]


Investigators efforts when hired by attorney

Coito v. Superior Court (2012), 54  Cal.4th 480    [dictum discussed witness statements and suggested efforts of investigator must reflect attorney initiative or thoughts]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.)
(2003), 113 Cal. App. 4th 1377  ["Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product."]

People v. Collie (1981), 30 Cal.3d 43, at p. 59 ["Nobles also persuasively reasons that the privilege should extend not just to the attorney's work product, but to the efforts of those who work with him to prepare the defense: "At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys must often rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself." (Id. at pp. 238-239 [45 L.Ed.2d at p. 154].) We conclude that the work-product doctrine applies to criminal cases and protects the work product of defense investigators."]

Rodriquez v. McDonald Douglas (1978), 87 Cal.App.3d 626 at p.647-48

Southern Pacific Co. v. Superior Court (1969), 3 Cal.App.3d 195 at p.198 [ Protected per dictum not disapproved in Kadelbach ]

Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436 at p. [Court assumed investigators reports were work product and compared them to expert's reports but found waiver because the investigator was to testify ]

Brown v. Superior Court (1963), 218 Cal. App.2d 430 at p. 437

Suezaki v. Superior Court (1962), 58 Cal.2d 166, 178 at p. 177 [films taken by investigator hired by attorney solely for trial prep and intended to be confidential are work product but not privileged as a matter of law; court discretion must be exercised with qualified work product ]

Investigative efforts of corporate employees  [see also attorney client privilege]

Coito v. Superior Court (2012), 54  Cal.4th 480   [witness statement taken by employees of defendant not work product; dictum]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377  ["Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product."]

City of Los Angeles v. Superior Court (1985), 170 Cal.App.3d 744, 753-54 [city employee working with attorney protected but not if working on own but occasionally consult w/ attorney]

People v. Collie (1981), 30 Cal.3d 43 ["...the privilege should extend not just to the attorney's work product, but to the efforts of those who work with him to prepare the defense: "At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys must often rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself." (citing United States v. Nobles, supra, 422 U.S. 225, 238-239) We conclude that the work-product doctrine applies to criminal cases and protects the work product of defense investigators.
Investigator comments & analysis on witness statements are WP and opinion suggests investigator thoughts etc are absolute WP. Prosecutor at trial seeks production of statement of criminal defense witness to defense investigator; tr ct overruled AC & WP objections and ordered production. SC found no prejudice to outcome of case]

Cf. Holm v. Superior Court (1954), 42 Cal.2d 500, 267 P.2d 1025 [ Atty-client privilege protects reports and photographs prepared for dual purposes if communication to attorney is dominant reason. "If it appears that the communication is to serve a dual purpose, one for transmittal to an attorney "in the course of professional employment" and one not related to that purpose, the question presented to the trial court is as to which purpose predominates.


Facts etc. not protected by transmission to attorney

Mack v. Superior Court (1968), 259 Cal.App.2d 7

Kadelbach v. Amaral (1973), 31 Cal.App.3d 814

Jasper Construction Co.v. Foothill Jr. College Distr. (1979), 91 Cal.App.3d 1 [ Expert reports of findings]

Mowry v. Superior Court (1962), 202 Cal.App.2d 229

Client right to assert though holder of privilege is attorney

Mack v. Superior Court (1968), 259 Cal.App.2d 7at p.10 [ "... the work product privilege was created for the protection of the client as well as the attorney...." Client asserted privilege re former attorney consultation with expert]

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p. 273 [privilege may attach to client upon attorney death or resignation from the case; attorney had waived privilege while alive and could not be reinstated by client; injustice would result since object of test not available]

Fellows v. Superior Court (1980), 108 Cal.App.3d 55, at p. 63-64 [" The Attorney's Work-product Privilege May Be Claimed by the Client Although the Privilege Belongs to the Attorney
Defendants assert that the plaintiffs had no standing to claim the attorney's work-product privilege for documents in their possession--documents received by them from Kottler, their former attorney, and claimed to constitute the "work product" of Kottler. It is the thesis of defendants that the attorney's work-product privilege belongs to the attorney only and that only the attorney--not the client--may claim the privilege to preclude disclosure of the privileged information. For this view, defendants rely upon Lohman v. Superior Court (1978) 81 Cal.App.3d 90 [146 Cal.Rptr. 171]. We conclude that Lohman is neither controlling nor persuasive with respect to the erroneous view espoused by defendants. In Lohman, the deposition of the plaintiff's former attorney was being taken by the defendant. The defendant sought to get from the attorney testimony as to certain opinions formed by him while representing the plaintiff. The plaintiff objected, asserting both the lawyer-client privilege and the attorney's work-product privilege. The deponent-attorney indicated that he was willing to testify with respect to the opinions requested. The Lohman court held that, since the attorney's work-product privilege belongs to the attorney and he, as holder of the privilege, was willing to waive it, the former client could not validly assert the privilege to prevent the attorney from so testifying.
The Lohman court recognized that Mack v. Superior Court (1968) 259 Cal.App.2d 7 [66 Cal.Rptr. 280], had held that, although Code of Civil Procedure section 2016--which creates the attorney's work-product privilege--does not set forth the persons who are entitled to claim the privilege, it would adopt a rule of law that the client as well as the attorney may claim this privilege. The Lohman court criticized the Mack case because of the latter's statement that "[t]he work product privilege was created for the protection of the client as well as the attorney ...." (Mack, supra, 259 Cal.App.2d 7, 10.) In disagreeing with Mack, the Lohman court makes the observation that "it appears that the whole thrust of the work product privilege was to provide a qualified privilege for the attorney preparing a case for trial and protecting the fruits of his labor from discovery." (Lohman, supra, 81 Cal.App.3d 90, 101; fn. omitted.)
The Lohman court is subject to criticism for its misreading of the holding of Mack. The Mack court does not hold that a client is a holder of the attorney's work-product privilege. The Mack court simply determines that, in the absence of the attorney, the client has standing to assert the privilege on behalf of the attorney, the only holder of the privilege. The language of Mack to the effect that the privilege was created in the interest of protecting the client as well as the attorney provides a basis for a judicial interpretation of Code of Civil Procedure section 2016 to permit a client to claim the attorney's work-product privilege whenever the attorney is not present to claim it himself. In Mack, the attorney was not present to claim the privilege while the client was present.
The Lohman decision itself is sound however. Since the attorney's work-product privilege belongs to the attorney, the attorney may waive it. This the attorney in Lohman did by agreeing to answer the questions [108 Cal.App.3d 65] posed to him at his deposition. Since the attorney, as the holder of the privilege, was willing to waive it, the former client could not object.
But in the case at bench, the situation is more analogous to Mack than to Lohman. Here plaintiffs were present, in possession of the documents belonging to their former attorney, Kottler, and, in his absence, had standing to claim the attorney's work-product privilege on his behalf. (See Jefferson, Cal. Evidence Benchbook (1972), The Attorney's Work-Product Privilege, § 41.1, p. 702.) This judicial interpretation of the attorney's work-product privilege makes this privilege comparable to the rules governing the various privileges set forth in the Evidence Code. Thus, under the lawyer-client privilege, the client is the holder of the privilege but the lawyer is also entitled to claim the privilege for the client (Evid. Code, §§ 953, 954); under the physician-patient privilege, the patient is the holder of the privilege but the physician is entitled to claim the privilege for the patient (Evid. Code, §§ 993, 994); and under the psychotherapist-patient privilege, the patient is the holder of the privilege but the psychotherapist is entitled to claim the privilege for the patient (Evid. Code, §§ 1013, 1014)."

Lasky, Haas, Cohler & Munter v. Superior Court (1985), 172 Cal.App.3d 264, at page 278. [Beneficiary proceeding to remove trustee; uncommunicated absolute work product sought from attorney. Attorney is exclusive holder of privilege citing numerous cases. Client may assert protection. Attorney for trustee can assert against trustee-client; trustee's fiduciary duty to beneficiary does not affect attorney protection for absolute privilege; case decided before statutory provision re malpractice cases was adopted]

Cf. Lohman v. Superior Court (1978), supra at p.101 [questioned Mack case re suggestion that work product protection may be privilege for client but consistent with client right to assert protection]

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Litigation requirement

Applies in non-litigation efforts

Rumac Inc. v. Bottomley (1983), 143 Cal.App.3d 810 ["Neither the text of the statute nor the policy underlying the creation of the absolute privilege warrants a class distinction between the lawyer-negotiator and the lawyer-litigator. There is also no valid reason to differentiate between the writings reflecting the private thought processes of a lawyer acting on behalf of a client at the beginning of a business deal and the thoughts of a lawyer when that business deal goes sour with resultant litigation."  cited with approval by the Supreme Court in Roberts v. Palmdale, 5 Cal.4th at p. 371 ]


Aetna Cas.& Sur. Co. v. Superior Court (1984), 153 Cal.App.3d 467, 478, [work product not limited to docs prepared for litigation; attorney hired to investigate & advise ins co re coverage]

County of Los Angeles v. Superior Court (Axelrad) (2000) 82 Cal.App.4th 819 , 98 Cal.Rptr.2d 564  ["The protection afforded by the privilege is not limited to writings created by a lawyer in anticipation of a lawsuit. It applies as well to writings prepared by an attorney while acting in a nonlitigation capacity. (Rumac, Inc. v. Bottomley (1983)")

Lasky, Haas, Cohler & Munter v. Superior Court (Getty) (1985) 172 Cal.App.3d 264, 273 , 218 Cal.Rptr. 205

Limit protection to pretrial discovery

Shepherd v. Superior Court (1976), 17 Cal.3d 107 at p. [termination with litigation]

Tip Top Foods v. Lyng (1972), 28 Cal.App.3d 533

Jasper Construction Co. v. Foothill Jr. College Distr. (1979

Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436

Brokopp v, Ford Motor Co.(1977), 71 Cal.App.3d 841

Trial as well as pretrial

American Mutual Liab. Ins. Co. v. Superior Court (1974), 38 Cal.App.3d 579

Merritt v. Superior Court (1970), 9 Cal.App.3d 721

Rodriquez v. McDonald Douglas (1978), 87 Cal.App.3d 626 at p. 648 [ "The attorney's work-product privilege is applicable at trial as well as at pretrial discovery proceedings. Although Code of Civil Procedure section 2016, subdivisions (b) and (g), are contained in the portion of the code dealing with discovery, the policy "to prevent an attorney from taking undue advantage of his adversary's industry or efforts," set forth in subdivision (g)(ii) of the Code of Civil Procedure, can be given adequate effect only if the attorney's work-product privilege is interpreted to apply in both the trial setting as well as in the pretrial discovery setting."...."We conclude that it was error for the trial court to deny Bethlehem's timely claim at trial of the attorney's work-product privilege to preclude the production of and introduction into evidence of Miller's notes and the testimony of Miller. "]

Post trial

Popelka, Allard McCowan & Jones v. Superior Court (1980), 107 Cal.App.3d 496 [absolute work product]

Fellows v. Superior Court (1980), 108 Cal.App.3d 55, 61-2[both absolute & conditional work product survive litigation. "The Attorney's Work-product Privilege Does Not Terminate at the Conclusion of the Particular Matter or Litigation for Which the Work-product Was Produced but Remains Viable in Subsequent Litigation. The trial court rejected plaintiff's claim of the attorney's work-product privilege for the 64 documents from their former attorney's file on the sole ground that the attorney's work-product privilege automatically terminated at the conclusion of the uninsured motorist claims matter and could not be asserted in the subsequent civil litigation between plaintiffs and defendants. We hold this ruling to be error."]

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476

Lasky Haas Cohler & Munter v. Superior Court (1985), 172 Cal.App.3d 264


Writing requirement

Writing not required for absolute work product

Coito v. Superior Court (2012), 54  Cal.4th 480   [audio recording of witness statement; writing requirement not discussed and not issue]

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App.4th 1263,1281   "...we conclude that unwritten opinion work product is entitled to the protection of the absolute work product privilege in California".
Id at p. 1273

comment of the Law Revision Commission to the 1967 amendment makes clear the scope of the amendment. `The express inclusion of "a legal opinion" in the last clause will preclude a possible construction of this section that would leave the attorney's uncommunicated legal opinion—which includes his impressions and conclusions—unprotected by the privilege. Such a construction would virtually destroy the privilege.'" (Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 99 [146 Cal.Rptr. 171].) Thus, legal opinions formed by counsel during representation of the client are protected "confidential communication[s]," even if the opinions have not been transmitted to the client.”

Satisfied by interrogatory that calls for production of work product

City of Long Beach v. Superior Court (1976), 64 Cal.App.3d 65

Burke v. Superior Court (1969), 71 Cal.2d 276


Absolute work product

C.C.P.§2018.030(a)

"Any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances" C.C.P. 2018.030(a)

Coito v. Superior Court (2012), 54  Cal.4th 480   [audio recorded witness statement possibly including atty comments,  questions reflecting thoughts etc, or selection of persons to to interview from among multiple alternatives; must reveal something significant about attorney's impressions etc]

Burke v. Superior Court (1969) 71 Cal.2d 276, at page 284 [ordinarily cannot ask for legal reasoning or theories and an interrogatory that asks for all facts supporting a legal defense of failure to state a cause of action is objectionable on work product grounds]

Sav-On Drugs, Inc. v. Superior Court (1975), 15 Cal.3d 1 at p.5 ["...cannot by discovery require disclosure of the specific statutes and administrative regulations supporting the tax deductions at issue herein. ... Both the California Revenue and Taxation Code and the California Administrative Code are as readily available to real party in interest as to petitioner and no purpose of discovery is served by compelling the latter to perform legal research for the former. (Alpine Mut. Water Co. v. Superior Court, 259 Cal.App.2d 45, 54 [66 Cal.Rptr. 250].) Further, the request in essence seeks the legal reasoning and theories behind petitioner's contention that any sales tax deductions it took are proper. A party's contention may be the subject of discovery, but not the legal reasoning or theory behind the contention."]

Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 Attorney generated document reflecting attorney's thoughts and notes is  protected as Absolute Work Product.   Document prepared by a person acting as a paralegal regarding an expert interview as to case evalutation and strategy created at direction of counsel that reflects counsel's thought process and contain counsel's notes is protected as absolute work product. Trial and appellate courts found and the Supreme Court afffirmed that “the entire document was protected as attorney work product.”
2 client reps & case manager, 2 lawyers, and 2 "designated defense experts" met "to discuss their litigation strategy and vulnerabilities. Case Mgr. and outside Atty "had worked together over a few years. Atty asked Case Mgr. "to take notes at the meeting and indicated specific areas to be summarized. Case Mgr. typed the notes on Atty's computer and acted as Atty's paralegal. Case Mgr. returned the computer and never saw a printed version of the notes. Atty printed only one copy of the notes, which he later edited and annotated. Atty never intentionally showed the notes to anyone, and the court determined that the sole purpose of the document was to help Atty defend the case.
“The notes were written in a dialogue style and summarize conversations among two outside counsel and the two experts. They are dated, but not labeled as 'confidential' or 'work product.' The printed copy of these compiled and annotated notes is the document at issue here. The document contained notations by one counsel but had never been seen by co-counsel.
“The document is not a transcript of the...strategy session, nor is it a verbatim record of the experts’ own statements. It contains [Case Mgr.'s] summaries of points from the strategy session, made at [Atty.'s] direction. [Atty] also edited the document in order to add his own thoughts and comments, further inextricably intertwining his personal impressions with the summary. (See Rodriguez, supra, 87 Cal.App.3d at pp. 647-648.) In this regard, the trial court found: 'As to the content of the document, although it doesn’t contain overt statements setting forth the lawyer’s conclusions, its very existence is owed to the lawyer’s thought process. The document reflects not only the strategy, but also the attorney’s opinion as to the important issues in the case. Directions were provided by [Atty] as to the key pieces of information to be recorded, and [Atty] also added his own input as to the important details, by inserting other words in the notes. The attorney’s impressions of the case were the filter through which all the discussions at the conference were passed through on the way to the page.' The court concluded, '[T]his court determines that the attorney’s directions to record only portions of the conference specific to the attorney’s concerns in the litigation are sufficient to support the finding that the notes are covered by the absolute work product [doctrine], as the choices in statements to record show the thought process and are too intertwined with the document.'
“Although the notes were written in dialogue format and contain information attributed to Mitsubishi’s experts, the document does not qualify as an expert’s report, writing, declaration, or testimony. The notes reflect the paralegal’s summary along with counsel’s thoughts and impressions about the case. The document was absolutely protected work product because it contained the ideas of [Atty] and his legal team about the case. (§ 2018.030, subd. (a).)”

Rico v. Mitsubishi Motors Corp. (2004) ,116 Cal. App. 4th 51 superseded by (2007) 42 Cal.4th 807 ["An attorney's notes containing his impressions, conclusions, opinions, or legal theories regarding a witness' prior statement is absolutely immune from discovery. There is a significant difference between a witness' statement and an attorney's notes concerning that prior statement. While the former may be discoverable, the latter is protected from discovery based on its derivative or interpretive nature.[citing Fellows v. Superior Court] The materials no longer consist solely of the witness' statements, but they also expose the attorney's impressions, including his evaluation of the strengths and weaknesses of the case.[citing Nacht& Lewis Architects and Rodgriquez cases] When the notes consist an attorney's impressions concerning the witness' statement, the {Slip Opn. Page 14} notes are protected absolutely under the attorney work product doctrine.[citing Rodriquez]  

Waiver of Absolute work product

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 214 990 P.2d 591[ The court held that dislosure to client or litigation counsel was not a waiver of absoute work product.]

Metro-Goldwyn-Mayer Inc. v. Superior Court (1994), 25 Cal.App.4th 242 ["The language of section 2018 makes clear the legislative intent to protect absolute work product from disclosure except in rare circumstances." Court of Appeal found the inequity of one side having critical information due to attorney who represented both in t/a taking position contrary to former client justified the application of the waiver doctrine.]

Writings: Limited to writings including interrogatory answers

Writing not required for absolute work product

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App.4th 1263,1281   "...we conclude that unwritten opinion work product is entitled to the protection of the absolute work product privilege in California".
Id at p. 1273“ comment of the Law Revision Commission to the 1967 amendment makes clear the scope of the amendment. `The express inclusion of "a legal opinion" in the last clause will preclude a possible construction of this section that would leave the attorney's uncommunicated legal opinion—which includes his impressions and conclusions—unprotected by the privilege. Such a construction would virtually destroy the privilege.'" (Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 99 [146 Cal.Rptr. 171].) Thus, legal opinions formed by counsel during representation of the client are protected "confidential communication[s]," even if the opinions have not been transmitted to the client.”

Merritt, v. Superior Court (1970), 9 Cal.App.3d 721 at p. 731

Burke v. Superior Court (1969) 71 Cal.2d 276, at p. 285 [application to answering interrogatories]

City of Long Beach v. Superior Court (1976), 64 Cal.App.3d 65 [interrog. ans. absolutely privileged]

Nacht & Lewis Architects, Inc. v. Superior Court (1996), 47 Cal.App.4th 214 [answering interrogatories reflecting attorney efforts to interview and statementize witnesses]

Snyder v. Superior Court (Caterpillar, Inc.) (Cal.App.Second Dist., Div. 2; December 18, 2007) 157 Cal.App.4th 1530. The Court held a local rule requiring disclosure of absolute or qualified work product in a pre-trial report is invalid.
Identification of witnesses on which a party intends to rely at trial is qualified work product
Identification of documents on which it intends to rely is absolute work product.
Expected testimony of witnesses is absolute work product.
"We easily conclude that these two requirements in General Order 29 conflict with section 2018.030 and the enunciation of the work product doctrine in City of Long Beach. Thus, as constructed, General Order 29 is invalid in its entirety...."

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Qualified work product

C.C.P.§2018.030(b)

Not discoverable unless court determines that denial of discovery will
1) Unfairly prejudice party seeking discovery in preparing its claim or defense or
2) Will result in an injustice
C.C.P. §2018.030(b)  [former 2016(b)]

Concept not defined but courts look to policy set forth in C.C.P.§2018.020

Coito v. Superior Court (2012), 54  Cal.4th 480   [concept discussed & cases summarized; derivative material, purpose of work product

Mack v. Superior Court (1968), 259 Cal.App. 2d 7 at p. 10

Merritt v. Superior Court (1970), 9 Cal.App.3d 721at p. 731

Brown v. Superior Court (1963), 218 Cal. App.2d 430,at p. 441

Sanders v. Superior Court (1963), 34 Cal.App.3d 270at p. 275

Williamson v. Superior Court (1978), 21 Cal.3d 829

Interpretative, derivative material from attorney; not evidentiary

Material of a derivative character...developed as a result of the initiative of counsel in preparing for trial

Mack v. Superior Court (1968), 259 Cal.App. 2d 7 at p. 10

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [expert report in advisory capacity]

Material of a derivative or interpretative nature obtained or produced by attorney

Fellows v. Superior Court (1980), 108 Cal.App.3d 55

Williamson, v. Superior Court (1978) 21 Cal.3d 829.

State Farm (1997), 54 Cal.App.4th 625

Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525.  qualified work product applied to expert's testing and report and prevented opposing party from interviewing or using reports or test results of experts. At p. 534 the court stated: “As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, at page 1079, "reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] . . . However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]" (See also Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.)”

Attorney's investigative labors

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

Aetna Casualty & Surety Co. v. Superior Court (1984) [Coverage attorney investigating mudslide claim; at least some docs absolute work product ]

Brown v. Superior Court (1963) at p. 443[consultations with medical review committee]

Rodriquez v. McDonald Douglas(1978), at p.648 [Investigator's thoughts absolute work product]

Nacht & Lewis Architects, Inc. v. Superior Court
(1996) [attorney evaluation of which potential witnesses to interview]

Information that would not ultimately be disclosed at trial

Mack v. Superior Court (1968), at p. 10

Southern Pacific Co. v. Superior Court (1969), at p.

Not information regarding events provable at trial

Mack v. Superior Court (1968) at p. 10

Kadelbach v. Amaral (1973), at p.

Not identity and location of physical evidence

Mack v. Superior Court (1968) at p. 10

Cf. Snyder v. Superior Court (Caterpillar, Inc.) (Cal.App.Second Dist., Div. 2; December 18, 2007) 157 Cal.App.4th 1530. The Court held a local rule requiring disclosure of absolute or qualified work product in a pre-trial report is invalid.
Identification of documents on which it intends to rely is absolute work product.

Not the names of witnesses having knowledge of relevant facts

Coito v. Superior Court (2012), 54  Cal.4th 480  [normally form interrogatory 12.3 re identity of witness statements is not work product]

City of Long Beach v. Superior Court(1976),

Nacht & Lewis Architects , Inc. v. Superior Court (1996),

Unger v. L.A. Transit Lines (1960),

Cf. Snyder v. Superior Court (Caterpillar, Inc.) (Cal.App.Second Dist., Div. 2; December 18, 2007) 157 Cal.App.4th 1530. The Court held a local rule requiring disclosure of absolute or qualified work product in a pre-trial report is invalid.
Identification of witnesses on which a party intends to rely at trial is qualified work product

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EXAMPLES OF WORK PRODUCT

Attorney Opinion Letter is absolute work product

BP Alaska Exploration v. Superior Court (1988),

City & County of San Francisco v. Superior Court (1982), 130 Cal.App.3d 481 [dictum re City Attorney's tentative opinion draft on legality of ordinance; the court expressly states it does not have to reach the issue of work product or attorney-client at page 486]

Fireman's Fund Ins. Co. v. Superior Court (2011), 196 Cal. App.4th 1263,1281   "...we conclude that unwritten opinion work product is entitled to the protection of the absolute work product privilege in California".  Legal opinions are work product as well as attorney-client privileged. Court held "discussions between [attorney] and investigator...regarding how to pay [witness] $1,000" and  asking attorney  which subpoenas she prepared based on any documents received from a witness were protected by the absolute work product privilege.

Interrogatories requiring the disclosure of work product
Burke v. Superior Court (1969) 71 Cal.2d 276, at page 284 [ordinarily cannot ask for legal reasoning or theories and an interrogatory that asks for all facts supporting a legal defense of failure to state a cause of action is objectionable on work product grounds; however, basis for contending that attachment could have been set aside by a pretrial motion is proper; court discusses Flora Crane case and attempts to distinguish between appropriate questions involving law and legal reasoning]

Sav-On Drugs, Inc. v. Superior Court (1975), 15 Cal.3d 1 at p.5 ["...cannot by discovery require disclosure of the specific statutes and administrative regulations supporting the tax deductions at issue herein. .... Both the California Revenue and Taxation Code and the California Administrative Code are as readily available to real party in interest as to petitioner and no purpose of discovery is served by compelling the latter to perform legal research for the former. (Alpine Mut. Water Co. v. Superior Court, 259 Cal.App.2d 45, 54 [66 Cal.Rptr. 250].) Further, the request in essence seeks the legal reasoning and theories behind petitioner's contention that any sales tax deductions it took are proper. A party's contention may be the subject of discovery, but not the legal reasoning or theory behind the contention. (Burke v. Superior Court, 71 Cal.2d 276, 284-285 [78 Cal.Rptr. 481, 455 P.2d 409]; Southern Pac. Co. v. Superior Court, 3 Cal.App.3d 195, 197-198 [83 Cal.Rptr. 231].)


Nacht &Lewis Architects Inc. v. Superior Court(1996), 47 Cal.App.4th 214 [Judicial Council form interrogatories not objection proof]

Prior efforts / current attorney analysis

Nacht & Lewis Architects Inc. v. Superior Court(1996), 47 Cal.App.4th 214 ["…a list of potential (employee) witnesses interviewed by opposing counsel would necessarily reflect counsel's evaluation of the case." Tr.Ct.order compelling answers to form interrog 12.2 "violates the qualified work product privilege." COMMENT.  Limit to facts of case in that attorney had volunteered that all interviews had been conducted by him even though the interrogatory inquires of the client efforts; thus, any answer in this case would reveal who the lawyer selected to interview from among a list of potential witnesses.]

City of Long Beach v. Superior Court (1976), 64 Cal.App.3d 65,73 [list of witnesses to be called at trial reveals counsel's evaluation]

Flora Crane Serv. v. Superior Court(1965), 234 Cal. App.2d 767 [contentions re failure to state cause of action in essence seeks attorney analysis and opinion and is improper; although much of Flora Crane has been disapproved ( see Burke v. Superior Court) the case has not been overruled and the legal reasoning objection in this example seems appropriate]

Tehachapi-Cummings County Water Distr v. Superior Court (1968), 267 Cal.App.2d 42[court suggests work done by expert prior to inception of case could be work product though attorney declared he had hired expert; in responding to interrogatories court suggests that fine details of expert report need not be disclosed so long as general position of party are revealed]

Southern Pacific Co. v. Superior Court (1969), 3 Cal.App.3d 195 [facts gathered by attorney or investigator hired by attorney are not protected by work product; following Mack the same court suggested in dictum that witness statements might be derivative material protected as work product but that example was expressly rejected by the same court in Kadlebach]

Burke v. Superior Court

Lay witnesses attorney intends to call at trial: names and the nature and extent of their testimony; persons with knowledge of facts are discoverable

Snyder v. Superior Court (Caterpillar, Inc.) (Cal.App.Second Dist., Div. 2; December 18, 2007) 157 Cal.App.4th 1530. The Court held a local rule requiring disclosure of absolute or qualified work product in a pre-trial report is invalid.
Identification of witnesses on which a party intends to rely at trial is qualified work product
Identification of documents on which it intends to rely is absolute work product.
Expected testimony of witnesses is absolute work product.
"We easily conclude that these two requirements in General Order 29 conflict with section 2018.030 and the enunciation of the work product doctrine in City of Long Beach. Thus, as constructed, General Order 29 is invalid in its entirety...."

In re Jeanette (1990), 225 Cal.App.3d 25 at p.31[qualified work product that yields to court administrative rule that required disclosure of witness list shortly before trial]

City of Long Beach v. Superior Court(1976) 64 Cal.App.3d 65 at p. 72-73 [name, nature and extent of testimony of lay witnesses intended to be called is developed as a result of the initiative of counsel, reflects attorney evaluation of the strengths and weaknesses of the witnesses, reflects attorney strategy and is derivative material that is protected as qualified work product; analysis of testimony may be absolute work product but general nature of testimony is qualified work product]

See Expert Case Outline for disclosure and deposition rules for expert witnesses

Witnesses interviewed by attorney

Coito v. Superior Court (2012), 54  Cal.4th 480  [Depends on facts. Normally must answer form interrogatory 12.3 re ID of witness statements obtained by counsel of its agents. Factual showing must be made that statemetizing a witness reveal attorney analysis etc e.g. might show importance attorney places on particular witness if it interviews select number of many]

Nacht & Lewis Architects, Inc. v. Superior Court [interrog answer would reveal employees of client interviewed by attorney due to prior response to another interrogatory where the attorney stated he interviewed witnesses. "Compelled 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 No. 12.1) counsel deemed important enough to interview."]

2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377[In determining whether attorneys investigating claim were acting as attorneys and information protected by attorney client or work product, court stated without expressing holding "...at least some of the requested information concerned Chicago Title's factual claims investigation, not the rendering of legal advice. For example, Chicago Title objected to questions to the adjuster Look concerning her interviews with third parties (the escrow company and the seller's agent) as part of her investigation. These questions concerned her factual claims investigation and do not constitute attorney-client communications or attorney work product."]

Paralegal memorandum and notes

Insurance Co. of North America v. Superior Court (GAF Corp.) (1980) 108 Cal.App.3d 758, 771, 166 Cal.Rptr. 880 [It appears the trial court inadvertently required production of memorandums and notes of a paralegal in Gallagher's law firm present at the briefing of March 11, 1977. Such materials, the work product of Gallagher's law firm, are not discoverable. (Code Civ. Proc. § 2016, subds. (b) and (g).)

Attorney / Investigator notes of witness interviews

Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 Attorney generated document reflecting attorney's thoughts and notes is  protected as Absolute Work Product.   Document prepared by a person acting as a paralegal regarding an expert interview as to case evalutation and strategy created at direction of counsel that reflects counsel's thought process and contain counsel's notes is protected as absolute work product. Trial and appellate courts found and the Supreme Court afffirmed that “the entire document was protected as attorney work product.”
2 client reps & case manager, 2 lawyers, and 2 "designated defense experts" met "to discuss their litigation strategy and vulnerabilities. Case Mgr. and outside Atty "had worked together over a few years. Atty asked Case Mgr. "to take notes at the meeting and indicated specific areas to be summarized. Case Mgr. typed the notes on Atty's computer and acted as Atty's paralegal. Case Mgr. returned the computer and never saw a printed version of the notes. Atty printed only one copy of the notes, which he later edited and annotated. Atty never intentionally showed the notes to anyone, and the court determined that the sole purpose of the document was to help Atty defend the case.
“The notes were written in a dialogue style and summarize conversations among two outside counsel and the two experts. They are dated, but not labeled as 'confidential' or 'work product.' The printed copy of these compiled and annotated notes is the document at issue here. The document contained notations by one counsel but had never been seen by co-counsel.
“The document is not a transcript of the...strategy session, nor is it a verbatim record of the experts’ own statements. It contains [Case Mgr.'s] summaries of points from the strategy session, made at [Atty.'s] direction. [Atty] also edited the document in order to add his own thoughts and comments, further inextricably intertwining his personal impressions with the summary. (See Rodriguez, supra, 87 Cal.App.3d at pp. 647-648.) In this regard, the trial court found: 'As to the content of the document, although it doesn’t contain overt statements setting forth the lawyer’s conclusions, its very existence is owed to the lawyer’s thought process. The document reflects not only the strategy, but also the attorney’s opinion as to the important issues in the case. Directions were provided by [Atty] as to the key pieces of information to be recorded, and [Atty] also added his own input as to the important details, by inserting other words in the notes. The attorney’s impressions of the case were the filter through which all the discussions at the conference were passed through on the way to the page.' The court concluded, '[T]his court determines that the attorney’s directions to record only portions of the conference specific to the attorney’s concerns in the litigation are sufficient to support the finding that the notes are covered by the absolute work product [doctrine], as the choices in statements to record show the thought process and are too intertwined with the document.'
“Although the notes were written in dialogue format and contain information attributed to Mitsubishi’s experts, the document does not qualify as an expert’s report, writing, declaration, or testimony. The notes reflect the paralegal’s summary along with counsel’s thoughts and impressions about the case. The document was absolutely protected work product because it contained the ideas of [Atty] and his legal team about the case. (§ 2018.030, subd. (a).)”

Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 superseded and affirmed by (2007) 42 Cal.4th 807  ["An attorney's notes containing his impressions, conclusions, opinions, or legal theories regarding a witness' prior statement is absolutely immune from discovery. There is a significant difference between a witness' statement and an attorney's notes concerning that prior statement. While the former may be discoverable, the latter is protected from discovery based on its derivative or interpretive nature.[citing Fellows v. Superior Court] The materials no longer consist solely of the witness' statements, but they also expose the attorney's impressions, including his evaluation of the strengths and weaknesses of the case.[citing Nacht& Lewis Architects and Rodgriquez cases] When the notes consist an attorney's impressions concerning the witness' statement, the {Slip Opn. Page 14} notes are protected absolutely under the attorney work product doctrine.[citing Rodriquez] 

Nacht & Lewis Architects v. Superior Court (1996), 47 Cal.App.4th 214 [Form Interrog 12.2 need not be answered because it would reveal which client counsel had interviewed and revealing the importance counsel placed on such persons; it suggests 12.3 need not be answered unless limited to witness statements "independently" prepared; confine to unique facts of case and see Coito v. Superior Court (2012), 54  Cal.4th 480 v. Superior Court (7/12/12),  Cal.4th ]

Thompson v. Superior Court (1997), 53 Cal.App.4th 480 [raw notes of investigator discoverable; "...raw written witness interview notes, to the extent they record the witness' statement rather than an attorney's work product impressions, opinions or conclusions about the statement...." are discoverable statements under the penal code 1054.03]

People v. Collie (1981), 30 Cal.3d 43, 59 [distinction between pure statement or prarphrse that is not protected work product and analysis or evaluation that is protected]

People v. Boehm(1969), 270 Cal.App.2d 13 [prosecutor's notes of witness interviews protected work product; statements or writings made by witness not protected]

Diagrams & charts

Williamson v. Superior Court(1978), at p. 58

Fellows v. Superior Court (1980)

Audit reports of books papers and records

Williamson v. Superior Court(1978) at p. 58

Fellows v. Superior Court (1980)

Investigator's efforts

People v. Collie (1981), 30 Cal.3d 43, 59 [Investigator report to attorney consisting of evaluations and analysis protected in criminal case; quoting Nobles case "...attorneys must often rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself." ]

Greyhound Corp v. Superior Court  (1961) 56 Cal.2d 355 at p. 401 [Neither work product under federal cases law nor the equivalent protections in California  protect the statements of indepedent witnesses gathered by investigators from discovery. The Hickman case was interpreted as involving opposing attorney's notes and impresssions of witnesses oral statments set forth  in a memorandum.]

Rodriquez v. McDonald Douglas at p. 647

Nacht & Lewis Architects [attorney investigative efforts]

Wellpoint Health Network, Inc. v. Superior Court(1997 [attorney investigative efforts]

Thompson v. Superior Court(1997 [Attorney / investigator  notes of wit interview = wit statement]

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Experts

Consultant / Expert Witness distinction

Swartzman v. Superior Court (1964), 231 Cal.App.2d 205. [Expert has dual function: (1)consultant on preparation of case which is protected work product and (2)witness with relevant opinion evidence which is subject to discovery once it is reasonably certain expert will give opinion testimony. Deposition of expert denied
Citizens for Ceres v. Superior Court
(2013), 217 Cal. App. 4th 889,
  “Work produced by an attorney's agents and consultants, as well as the attorney's own work product, is protected by the attorney work product doctrine. (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 531 [51 Cal.Rptr. 511].) p. 911. "The purposes of the work product doctrine are to "[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases," and to "[p]revent attorneys from taking undue advantage of their adversary's industry and efforts." (Code Civ. Proc., § 2018.020.)” p. 912

Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) Data reveal to expert in consultative capacity and not considered in forming opinion need not be produced over valid privilege and relevancy objections and need not be produced pursuant to FRCP Rule 26(a)(2)(B).  Dual and simultaneous role of expert as expert witness and expert consultant recognized citing N.D. Ca. case:

“FN13.Id. The extent to which Rule 26(a)(2)(B) affects materials considered by a dual-purpose expert who serves as both testifying expert and consulting expert has not been addressed in this Circuit. However, the Court is guided by the uniform rulings of district courts elsewhere that have decided the question. See, e.g., S.E.C. v. Reyes, No. C 06-04435, 2007 WL 963422, at *1 (N.D.Cal. Mar. 30, 2007) ("A question thus arises about whether, and to what extent ... privilege applies when an expert alternately dons and doffs the "privileged hat" of a litigation consultant and the "non-privileged hat" of the testifying witness. In other words, does a litigant forfeit the privilege that would otherwise attach to a litigation consultant's work when he offers that expert as a testifying witness? Every court to address this "multiple hats" problem has concluded that an expert's proponent may still assert a privilege over such materials, but only over those materials generated or considered uniquely in the expert's role as consultant.") (citing cases). The law on this point is especially developed in the Second Circuit, and specifically, in a line of cases decided in the Southern District of New York. See, e.g., Braspetro, 2002 WL 15652, at *8;B.C.F. Oil, 171 F.R.D. at 60;Detwiler v. Offenbecher, 124 F.R.D. 545, 546 (S.D.N.Y.1989); Beverage Mktg v. Ogilvy & Mather Direct Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y.1983). While the latter two cases were decided prior to the advent of Rule 26(a)(2)(B), they serve as the basis for the principle established in B.C.F. Oil and reiterated in Braspetro--that an expert may "wear two hats," one as a testifying expert, and one as a consulting expert, and documents disclosed to the expert which have no relation to the testifying expert role need not be produced under Rule 26(a)(2)(B).

Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525.  at p. 534 the court stated: “As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, at page 1079, "reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] . . . However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]" (See also Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.)”

Garrett v. Coast Fed. Sav. & Loan (1984), 136 Cal.App.3d 266 Case cannot be cited for authority. REVIEW GRANTED, opinion vacated, case settled and appeal dismissed [Assertion of work product at deposition shortly before trial = election not to call as expert witness; cannot later call the witness during the trial]

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at page 271 "In this state, a distinction is drawn between oral or written reports made by an expert to the attorney who retained him and the expert's own observations and conclusions. For obvious reasons, the expert's reports and communications to the attorney are treated as the attorney's work product and are protected by the work product privilege. (San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194, 204 [23 Cal.Rptr. 384, 373 P.2d 448, 97 A.L.R.2d 761].) But an expert's own observations and conclusions based on those observations are not considered the attorney's work product because it is the expert's thought, research and effort, not the thought, research and effort of the attorney, which are sought by the adversary party. (Dow Chemical Co. v. Superior Court, supra, 2 Cal.App.3d 1, 9; Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122, 129 [3 Cal.Rptr. 621, 86 A.L.R.2d 129].) Nevertheless, with regard to pretrial disclosure, a distinction is drawn between an independent expert engaged by a party as part of his preparation for trial and the usual fact witness. The foundation of this distinction is fairness, and good cause is required to invoke the power of the court to require pretrial disclosure of the expert's observations and conclusions. "This rule avoids the permanency and inflexibility which would follow if the cloak of privilege were extended to cover the testimony of such experts." (Grand Lake Drive In v. Superior Court, supra, 179 Cal.App.2d 122, 129.)"

Consultant's work is protected as work product

National Steel Products v. Superior Court (1985) [Trial Court ordered production of expert report in prior action for same client; writ issued for in camera inspection and determination (1) if all or part reflected attorney impressions etc and was absolute work product, (2) if qualified work product should be produced because of good cause, injustice or unfair prejudice, and (3) to determine relevance. Expert services rendered in advisory capacity & matters reflecting attorney mental process protected e.g. assistance in prep of pleadings, presentation of proof, cross examination of opposing expert; see Scotsman & Swartzman;]

Swartzman v. Superior Court
(1964), 231 Cal.App.2d 205

Schreiber v. Estate of Kizer
(1999), 22 Cal.4th 31, 989 P.2d 720

County of Los Angeles
v. Superior Court, (1990), 222 Cal.App.3d 647 at p.654

Williamson v. Superior Court
(1978), 21 Cal.3d 829

Mack v. Superior Court
(1968), 259 Cal.App. 2d 7

Swartzman v. Superior Court
(1964), 231 Cal.App.2d 205.

Jasper Construction Co. v. Foothill Jr. College Distr.
(1979), 91 Cal.App.3d 1 [No protection if hired by party and work done prior to attorney involvement]

Fellows v. Superior Court
(1980), 108 Cal.App.3d 55 [findings, opinions & reports of experts employed by attorney to analyze evidentiary material]

Kennedy v. Superior Court
(1998), 64 Cal.App. 4th 674

Petterson v. Superior Court (1974), 39 Cal.App.3d 267

See also Mowry v. Superior Court (1962), 202 Cal.App.2d 229, 240. [Prior to work product being enacted as part of CCP. Case does not focus on work product but discusses Grand Lake Drive-In and the scope of an expert's examination in the context of attorney client privilege recognizing that an expert can be deposed as to facts, observations, opinion etc. but not as to a report that was a confidential communication to counsel]

Waiver by election to inject opinion as issue in law suit as Declared Expert Witness

Shooker v. Superior Court (Winnick) (2003) (2003), 111 Cal. App. 4th 923 [Plaintiff designated himself as an expert witness per C.C.P. §2034 and later withdrew that designation. Defendant claimed the designation was a waiver of WP & AC and that the withdrawal of the expert designation had no effect on the waiver. Plaintiff was subject to deposition without the protection of the privileges. The Court of Appeal issued its writ holding “... the designation of a party as an expert trial witness is not in itself an implied waiver of the party's attorney-client privilege. If the designation is withdrawn before the party discloses a significant part of a privileged communication (as in this case), or before it is known with reasonable certainty that the party will actually testify as an expert, the privilege is secure.”]

County of Los Angeles v. Superior Court (1990), 222 Cal.App.3d 647 at p.655 [If "reasonably certain" will give expert opinion on material issue, work product"terminates" and "knowledge and opinions" are subject to discovery.]

Bolles v. Superior Court (1971 [ work product doesn't apply after state intent to call at trial as expert witness ]

Brokopp v. Ford Motor Co. (1977), 71 Cal.App.3d 841

Schreiber v. Estate of Kiser (1999), 22 Cal.4th 31, 989 P.2d 720

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [Trial court rev'd for ordering production of expert report prepared for prior, similar litigation. Trial Court to conduct further proceedings to determine if good cause, injustice, or prejudice required disclosure]

Cf. Scotsman, Swartzman, Sanders cases re dual rule of expert as consultant and expert witness See also Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) Data revealed to expert in consultative capacity and not considered in forming opinion need not be produced over valid privilege and relevancy objections and need not be produced pursuant to FRCP Rule 26(a)(2)(B).  Dual and simultaneous role of expert as expert witness and expert consultant recognized citing N.D. Ca. case:

“FN13.Id. The extent to which Rule 26(a)(2)(B) affects materials considered by a dual-purpose expert who serves as both testifying expert and consulting expert has not been addressed in this Circuit. However, the Court is guided by the uniform rulings of district courts elsewhere that have decided the question. See, e.g., S.E.C. v. Reyes, No. C 06-04435, 2007 WL 963422, at *1 (N.D.Cal. Mar. 30, 2007) ("A question thus arises about whether, and to what extent ... privilege applies when an expert alternately dons and doffs the "privileged hat" of a litigation consultant and the "non-privileged hat" of the testifying witness. In other words, does a litigant forfeit the privilege that would otherwise attach to a litigation consultant's work when he offers that expert as a testifying witness? Every court to address this "multiple hats" problem has concluded that an expert's proponent may still assert a privilege over such materials, but only over those materials generated or considered uniquely in the expert's role as consultant.") (citing cases). The law on this point is especially developed in the Second Circuit, and specifically, in a line of cases decided in the Southern District of New York. See, e.g., Braspetro, 2002 WL 15652, at *8;B.C.F. Oil, 171 F.R.D. at 60;Detwiler v. Offenbecher, 124 F.R.D. 545, 546 (S.D.N.Y.1989); Beverage Mktg v. Ogilvy & Mather Direct Response, Inc., 563 F.Supp. 1013, 1014 (S.D.N.Y.1983). While the latter two cases were decided prior to the advent of Rule 26(a)(2)(B), they serve as the basis for the principle established in B.C.F. Oil and reiterated in Braspetro--that an expert may "wear two hats," one as a testifying expert, and one as a consulting expert, and documents disclosed to the expert which have no relation to the testifying expert role need not be produced under Rule 26(a)(2)(B).

Withdrawal of waiver by election not to call

Shooker v. Superior Court (Winnick) (2003) (2003), 111 Cal. App. 4th 923
Expert witness designation may be withdrawn prior to disclosure of privileged material to avoid waiver of privilege. The mere designation of an intent to call a party as an expert witness pursuant to C.C.P.§2034 is not a waiver of the attorney-client privilege

County of Los Angeles v. Superior Court (1990), 222 Cal.App.3d 647 at p.655 [No motion required to withdraw designated expert. "We hold that a party may, for tactical reasons, withdraw a previously designated expert witness, not yet deposed. If that expert continues his or her relationship with the party as a consultant, the opposing party is barred from communicating with the expert...." at p.657]

Williamson v. Superior Court (1978), 21 Cal.3d 829 at p.835 [Can withdraw expert but not if it is part of a conspiracy to suppress evidence]

Kennedy v. Superior Court(1998), 64 Cal.App. 4th 674 [Cannot w/d expert who has conducted medical exam to avoid deposition or report which are quid pro quo for exam]

Garrett v. Coast Fed Sav. & Loan (1984) [work product objection to testimony at depo = decision to withdraw expert and precludes testimony]

Good cause to depose expert; concept applied in early cases

County of Los Angeles v. Superior Court(1990) at p.654 fn.4 [No adequate substitute for material generated by the expert exists]

Grand Lake Drive-Inv. v. Superior Court (1960), 179 Cal.App.2d 122. at p. 129 ["...fairness requires a showing of good cause as a condition to exercise of the power of the court to require pretrial disclosure of the observations and conclusions of an independent expert engaged by a party as part of his preparation for trial...."]

Dow Chemical Co.v. Superior Court, (1969), 2 Cal.App.3d 1 at p.9. at p. 9 [ depo of potential expert wit. as to tests & observations and opinions & conclusions based thereon denied for lack of good cause though court opined they were not protected as work product]

Bolles v. Superior Court (1971), 15 Cal.App.3d 962 [ work product doesn't apply once intent to call as expert; good cause required to depose: i.e. no abuse of adversary rights & necessary for trial prep]

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p. 271 ["...an expert's own observations and conclusions based on those observations are not considered the attorney's work product because it is the expert's thought , research and effort , not the thought, research and effort of the attorney.... Nevertheless, with regard to pretrial disclosure, ..." good cause required

Avoid confusing cases re "good cause" for document production with "unfrair prejudice" or "injustice" to overcome "work product" per C.C.P. 2018.030(b). However, the concept of "good cause" as used in Grand Lake Drive-In was comparable to unfair prejudice

Beesley v. Superior Court(1962), 58 Cal.2d 205
Christy v. Superior Court (1967), 252 Cal.App.2d69

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Examples of good cause

Expert may be called as witness

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476

Petterson v. Superior Court (1974) 39 Cal.App.3d 267 at p. 272

Sanders v. Superior Court (1973), 34 Cal.App.3d 270, at p. 279

Mowry v. Superior Court (1962), 202 Cal.App.2d 229 [Expert had submitted declaration in preliminary proceeding which was relevant to issues presently before court. Although the right to depose the expert was not an issue, the propriety and scope of examination was discussed.]

Object of evidence unavailable: the object, previously examined or tested by an opponent's expert, is no longer available, or the testing so altered the object tested, that the adversary cannot make like tests.

Petterson v. Superior Court (1974) 39 Cal.App.3d 267 at p. 272

Dow Chemical v. Superior Court (1969), 2 Cal.App.3d 1, at p.7

Grand Lake Drive-In v. Superior Court (1960), 179 Cal.App.2d 122 at p.130-131

Necessary for trial prep and disclosure doesn't abuse rights of adversary

Bolles v. Superior Court (1971), 15 Cal.App.3d 962 at p. 963
Cf. Dow Chemical. v. Superior Court (1969), 2 Cal.App.3d 1


Fees & expenses of hiring expert in unusual case

Grand Lake Drive-In v. Superior Court (1960), 179 Cal.App.2d 122. at p. 131

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Depositions of Experts

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p.271 [Expert would not be witness; depo limited to observations prior to retention by current law firm; normally can't depose consultant but good cause may justify e.g. destruction or unavailability of object ]

Grand Lake Drive-In v. Superior Court (1960), 179 Cal.App.2d 122.

Observations of expert

Petterson v. Superior Court (1974) 39 Cal.App.3d 267 at p.271 [expert observations & conclusions not absolute work product]

Brown v. Superior Court (1963), 218 Cal. App.2d 430, [depo of consulting medical com. ok but not allowed to ask opinions etc. by interrogs]

Queen of Angels Hospital v. Superior Court (1976), 57 Cal.App.3d 370 [medical exam & report produced per 2032]

Grand Lake Drive-In v. Superior Court (1960), 179 Cal.App.2d 122. [not work product but good cause required e.g. destruction of object or testing not possible]

Information conveyed by attorney or party

Kenney v. Superior Court (1967), 255 Cal.App.2d 106 at p. 113 [can ask what attorney or party told consultant and vice versa; much of Kenney case rejected]

Opinions & conclusions of experts

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p.271 [Experts observations and conclusions not work product but court may have meant absolute work product

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476

Test conducted is proper inquiry and not work product

Tip Top Foods v. Lyng (1972), 28 Cal.App.3d 533

Brokopp v. Ford Motor Co. (1977), 71 Cal.App.3d 841

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Expert Reports:

ALTERNATIVES:See National Steel Products analysis & suggestion that in camera review may be necessary to determine nature of report that may be (1) absolute work product if reflective of attorney analysis etc, (2) qualified work product, if advisory, discoverable if unfair prejudice, injustice etc or (3) discoverable if not even advisory.

Qualified work product, show injustice/unfair prejudice/good cause

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [impeachment see Sanders case re forced election at time close to trial; report of expert in advisory capacity protected by qualified priv.]

Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525,  p. 534  “As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, at page 1079, "reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] . . . However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]" (See also Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.)”  The court also found there was no unfair prejudice to overcome the qualified work product protection since comparable sampling or test results could be obtained: “the question is not whether real parties can duplicate the tests that Maas performed but whether they have an equivalent opportunity to generate comparable evidence.”

Kizer v. Selnick(1988), 202 Cal.App.3d 431 [Plt study re health effects of waste facility produced; can't duplicate; significant need ]

County of Los Angeles v. Superior Court
(1990) at p.655 [withdrawal of expert maintains work product of report; fn.4 re good cause = lack of adequate substitute for report]

San Diego Prof. Asn. v.Superior Court
(1962), 58 Cal.2d 194 at p. 204 [inspection allowed]

Scotsman Mfg.Co
v. Superior Court (1966), 242 Cal.App.2d 527 at p. 529, 530[inspection denied; ".]

Petterson v. Superior Court
(1974), 39 Cal.App.3d 267 at p.271 [ Experts oral or written reports or communications to attorney who retained him protected as work product]

Williamson v. Superior Court
(1978), 21 Cal.3d 829 at p. 58 [ findings, opinions & reports of experts employed by attorney for analysis & trial prep.]

Fellows v. Superior Court
(1980), 108 Cal.App.3d 55 [expert reports are derivative material]

Mize v. Atchison, Topeka & Santa Fe
(1975), 46 Cal.App.3d 436 [inspection of investigator file CF to expert file and discoverable when testifying & refresh recollection; dictum suggests all work product ceases when elect to call expert]

Sanders v. Superior Court
(1973), 34 Cal.App.3d 270 ["In making the order conditional the trial court recognized that 'the initial status of the expert, as consultant and possible witness, changes its character at that point in the suit when it has become known he will actually testify as a witness' requiring that his testimony be evaluated along with that of others and therefore subjecting him to appropriate pretrial discovery procedures. As was said in Bolles v. Superior Court, 15 Cal.App.3d 962 at 963, 93 Cal.Rptr. 719, 'As Barton has stated its intention to call Nicholson as a witness, the work product privilege is inapplicable. (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 530--532, 51 Cal.Rptr. 511.)' We conclude that the information and opinion of an expert respecting the subject matter about which he is a prospective witness are subjects of discovery by interrogation or deposition procedures and, if submitted in a report confined thereto, by production of such a report. However, as was said in Swartzman, supra, 'In the case of expert opinion witnesses good cause normally must be shown to compel a deposition in advance of trial and in the absence of good cause a motion to quash the deposition is justified.' Good cause includes a showing that the expert may be called as a witness. Since, as pointed out above, no good cause has been shown in the instant case for the taking of the depositions at this time the imposing of the conditions in the order referred to was an abuse of discretion. The practicalities of the situation compel brief consideration of a case wherein parties claim that no decision has been reached as to the use of an expert witness and continue to profess indecision to the date of trial. This was envisioned in Swartzman, supra, and commented on in Scotsman Mfg. Co., supra, at page 532, 51 Cal.Rptr. at page 514, as follows:
'If, as asserted in the instant case, petitioner is unwilling to declare its intention respecting the prospective status of Dr. Morelli as an expert witness, the trial court, in an appropriate proceeding, would be authorized to permit discovery by interrogation or deposition. (Swartzman v. Superior Court, Supra, 231 Cal.App.2d 195, 204--205, 41 Cal.Rptr. 721.)'
We hold that, upon a showing of good cause made at an appropriate stage of the proceedings, e.g., the pretrial hearing at which time discovery is presumably complete, the case at issue and ready for trial setting, a party may be required to elect whether or not to call the expert as a witness and to disclose such election to his adversary. If he elects to do so, the opposing party shall be granted a reasonable time thereafter within which to conduct appropriate additional discovery directed at securing the desired information.

Absolute work product

Scotsman Mfgr. Co. . v. Superior Court (1966), 242 Cal.App.2d 527, [dictum re trial prep advice or information and opinions re unfavorable aspects of case ]

Sanders v. Superior Court (1973), 34 Cal.App.3d 270 at p. 278 [records requested by and prep.for attorney for use in trial prep are"clearly work product and not discoverable ]

Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525.  at p. 534 the court stated: “As noted in Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, at page 1079, "reports prepared by an expert as a consultant are protected until the expert is designated as a witness. [Citation.] . . . However, to the extent that said reports embrace counsel's impressions and conclusions, the work-product doctrine gives absolute protection to that information. [Citation.]" (See also Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.)”


Williamson v. Superior Court(1978), 21 Cal.3d 829 at p. [consulting experts reports clearly privileged]

National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [expert report to the extent it reflects the thoughts, impressions and conclusions of counsel]

Not work product

Sheets v. Superior Court(1967), 257 Cal.App.2d 1 [CPA hired before lawsuit by party; work product waived by failure to assert in trial court]

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EXAMPLES OF MATTERS NOT WORK PRODUCT

Facts: source of facts not a factor

Investigator or attorney efforts

Southern Pacific Co. v. Superior Court (1969), 3 Cal.App.3d 195

Mack v. Superior Court (1968), 259 Cal.App. 2d 7

People v. Collie (1981), 30 Cal.3d 43 [witness statement or paraphrase not protected but investigator report to attorney consisting of analysis is protected by work product]

Experts efforts

Tehachapi-Cummings Co. Water Distr. v. Superior Court (1968), 267 Cal.App.2d 42

Sigerseth v. Superior Court (1972), 23 Cal.App.3d 427 [sanctions appropriate when refuse to pay expert who will testify for time to get info on eve of trial]

Sheets v. Superior Court (1967), 257 Cal.App.2d 1

Privileged documents

Tehachapi-Cummings Co.Water Distr. v. Superior Court(1968), 267 Cal.App.2d 42

Identity of persons with knowledge of facts

Borse v. Superior Court (1970), 7 Cal.App.3d 286, at p. 289

City of Long Beach v. Superior Court(1976) at p.

Smith v. Superior Court (1961), 189 Cal.App.2d 6, at p.13

Unger v. v. L.A. Transit Lines (1960), 180 Cal.App.2d 172 p. 179 [names and addresses of witnesses not privileged even if contained in privileged documents]

Potential Expert Witness Identity

Cases possibly superseded by expert disclosure statute ?

Kenney v. Superior Court (1967) 255 Cal.App.2d 106 at p. 112

Sigerseth v. Superior Court (1972), 23 Cal.App.3d 427

Schreiber v. Estate of Kiser (2000), 22 Cal.4th 31, 989 P.2d 720[ dictum states identity of retained experts is privileged unless they will testify. "Thus, were the [treating] physicians in this case consulted solely for the purpose of assisting counsel...their identity and opinions would not have been discoverable." but the court next notes that the id and opinions of treating physicians are not privileged]

Witness statement

Coito v. Superior Court (2012), 54  Cal.4th 480   [identity normally not protected absent factual showing; production at least qualified work product unless unfair prejudice or injustice shown and may be absolute work product]

REVIEW GRANTED; REMANDED BY SC  Coito  v. Superior Court, Stanislaus County (2010), 182 Cal.App.4th 758 Witness statements are not qualified or absolute work product absent something "unique about a particular witness interview that revealed interpretive rather than evidentiary information." The court rejected the Nacht & Lewis decision and ordered the trial court to grant a motion compelling answers to form interrogatory 12.3 production of witness statements taken by investigators at the direction of counsel including questions provided by counsel. The Court in both the majority and dissent discussed work product cases in detail and they both agreed the trial court should be reversed and Nacht & Lewis was improperly decided.  The majority opinion stated its reasoning in part as follows:

"We agree with petitioner’s argument that witness statements are classic evidentiary material. They can be admitted at trial as prior inconsistent statements (Evid. Code, § 1235), prior consistent statements (id., § 1236), or past recollections recorded (id., § 1237). Yet, if the statements are not subject to discovery, the party denied access to them will have had no opportunity to prepare for their use. Moreover, a witness statement could contain information favorable to the party denied access, who otherwise could use the statement to refresh the witness’s recollection, impeach the witness’s testimony, or rehabilitate the witness after cross-examination. These impacts on the quest for truth simply are not justified by the policy of encouraging lawyers to prepare their cases for trial or the policy of protecting the diligent attorney from others who would take advantage of his or her industry. (§ 2018.020.)"
"...we choose to follow the weight of authority and hold that written and recorded witness statements, including not only those produced by the witness and turned over to counsel but also those taken by counsel, are not attorney work product. Because such statements are not work product, neither is a list of witnesses from whom statements have been obtained (the list requested by form interrogatory No. 12.3)"
The dissenting opinion agreed "absolute work product privilege is not applicable to a recorded witness statement merely because it was recorded by an attorney or his agent" but concluded it was only potentially discoverable under the qualified privilege.

Rico v. Mitsubishi Motors Corp.
(2007) 42 Cal.4th 807 Attorney generated document reflecting attorney's thoughts and notes is  protected as Absolute Work Product.   Document prepared by a person acting as a paralegal regarding an expert interview as to case evalutation and strategy created at direction of counsel that reflects counsel's thought process and contain counsel's notes is protected as absolute work product. Trial and appellate courts found and the Supreme Court afffirmed that “the entire document was protected as attorney work product.”


Rico v. Mitsubishi Motors Corp
. (2004),
116 Cal. App. 4th 51 [superseded and affirmed by (2007) 42 Cal.4th 807] ["An attorney's notes containing his impressions, conclusions, opinions, or legal theories regarding a witness' prior statement is absolutely immune from discovery. There is a significant difference between a witness' statement and an attorney's notes concerning that prior statement. While the former may be discoverable, the latter is protected from discovery based on its derivative or interpretive nature.[citing Fellows v. Superior Court] The materials no longer consist solely of the witness' statements, but they also expose the attorney's impressions, including his evaluation of the strengths and weaknesses of the case.[citing Nacht& Lewis Architects and Rodgriquez cases] When the notes consist an attorney's impressions concerning the witness' statement, the {Slip Opn. Page 14} notes are protected absolutely under the attorney work product doctrine.[citing Rodriquez]
Kadelbach v. Amaral (1973), 31 Cal.App.3d 814 at p. 822-823 [not protected " as a matter of law"; case should be read with Mack and Southern Pacific; case expressly disapproves its own dictum in Southern Pacific that interpreted Mack to include witness statements within derivative material as work product]

Greyhound Corp. v. Superior Court (1961), 56 Cal.2d. 355, at p. 399-401
Neither work product under federal cases law nor the equivalent protections in California protect the statements of indepedent witnesses gathered by investigators from discovery. The Hickman case was interpreted as involving opposing attorney's notes and impresssions of witnesses oral statments set forth in a memorandum. Although work product was not recognized in California as a "privilege", court suggested other concepts for protecting against abuses of discovery could protect such material from discovery in the proper circumstances such as in the Trade Center case].
"Petitioner also argues that its attorney should not be required to disclose the statements of the independent witnesses for the reason that such are the product of its preparation for the defense of probable litigation. This is a claim based on the so-called "work product doctrine" announced [56 Cal.2d 400] by the United States Supreme Court in Hickman v. Taylor (supra, 329 U.S. 495).
The Hickman case involved an attempt to require the adversary's attorney to disclose (under the federal discovery rules) his written memoranda of impressions received from oral statements and conversations had with independent witnesses who were equally available to both parties. After holding (as we have herein) that the statements made by independent witnesses were not privileged in and of themselves, the court came to the conclusion that the attorney should not be required to make disclosure of his own notes and impressions. It based this determination on the necessity of protecting a lawyer's privacy, and maintaining his freedom from intrusion by the opposing parties during his attempts to assemble information, sift the relevant from the irrelevant, and prepare his legal theories and strategy. The court carefully added the following warning:
"We do not mean to say that all written materials obtained or prepared by an adversary's counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney's file and where production of those facts is essential to the preparation of one's case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration. And production might be justified where the witnesses are no longer available or can be reached only with difficulty. Were production of written statements and documents to be precluded under such circumstances, the liberal ideals of the deposition-discovery portions of the Federal Rules of Civil Procedure would be stripped of much of their meaning." (329 U.S. at p. 511.) fn. 21
Except for its reference to the federal rules, the quoted [56 Cal.2d 401] paragraph could have been written for the facts and purposes of the instant case. "
 
People v. Collie (1981), 30 Cal.3d 43 [witness statement or paraphrase not protected but investigator hired by law firm report to attorney consisting of analysis is protected by work product]

Rodriquez v. McDonald Douglas(1978), 87 Cal.App.3d 626, at p.647 [Motion to quash subpoena for notes of investigator denied. Investigartor examined re notes and contact with witness. "...the notes were an amalgam of the recorded statements of a witness and comments of [investigator], as agent for an attorney. fn. 11 That part of [investigator's] notes which recorded [witness'] statements would not be protected by the attorney's work-product privilege, since recorded or written statements of a prospective witness are considered material of a nonderivative or noninterpretative nature. (People v. Boehm (1969) 270 [87 Cal.App.3d 648] Cal.App.2d 13 [75 Cal.Rptr. 590].) But that portion of [investigator's] notes which consisted of [investigator's] own comments about [witness'] statement is protected absolutely from disclosure by the attorney's work-product privilege as a "writing that reflects an attorney's [or attorney's agent's] impressions, conclusions, opinions, or legal research or theories." (Code Civ. Proc., § 2016, subd. (b); Boehm, supra, 270 Cal.App.2d 13; Jefferson, Cal. Evidence Benchbook (1972) § 41.2, pp. 709-712.) [Investigator's] comments were so intertwined with [witness'] recorded statements that all portions of the notes should be held protected by the absolute portion of the attorney's work-product privilege.]

Brown v. Superior Court (1963), 218 Cal. App.2d 430, at p. 443 [impeachment value may not outweigh work product]

Suezaki v. Superior Court (1962), 58 Cal.2d 166, at p. 177 [ films taken by investigator hired by attorney, solely for trial prep and intended to be confidential are work product but not privileged "as a matter of law"; factor to be considered by court i.e. qualified work product]

Fellows v. Superior Court(1980), 108 Cal.App.3d 55 [witness statement is an example of non-derivative material that is not protected by work product]

Thompson v. Superior Court(1997), 53 Cal.App.4th 480 [criminal case. Attorney or investigator raw notes of interview = witness statementraw. "...written witness interview notes, to the extent they record the witness's statement rather than an attorney's work product impressions, opinions, or conclusions about the statement, are "statements" as defined in section 1054.3 and thus subject to discovery."]

Wellpoint Health Networks Inc. v. Superior Court (1962), 59 Cal.App.4th 110 [dictum re witness statements prepared by party]

Nacht & Lewis Architects v. Superior Court(1996), 47 Cal.App.4th 214[ Court held party need not answer form interrogatory 12.2 identifying a witness statement taken by counsel. Dictum re "...recorded statements taken by...counsel would be protected by the absolute work product privilege because they would reveal counsel's impressions (etc.)".... " Independently written or recorded statement" of witness not work product.] Decision rejected in REVIEW GRANTED  Coito  v. Superior Court, Stanislaus County (2010), 182 Cal.App.4th 758


Cf. Mental process of attorney interviewing witness not discoverable
Coito v. Superior Court (2012), 54  Cal.4th 480

Rico v. Mitsubishi Motors Corp.
(2007) 42 Cal.4th 807 Attorney generated document reflecting attorney's thoughts and notes is  protected as Absolute Work Product.   Document prepared by a person acting as a paralegal regarding an expert interview as to case evalutation and strategy created at direction of counsel that reflects counsel's thought process and contain counsel's notes is protected as absolute work product. Trial and appellate courts found and the Supreme Court afffirmed that “the entire document was protected as attorney work product.”


Rico v. Mitsubishi Motors Corp.
(2004) , 116 Cal. App. 4th 51
[superseded and affirmed by (2007) 42 Cal.4th 807] ["summary, in dialogue form, of a defense conference between attorneys and defense experts in which the participants discussed the strengths and weaknesses of the defendants' technical evidence"." The attorney's work product doctrine covers documents created not only by an attorney, but also his agents or employees, including his paralegal."]
Hobbs v. Municipal Court (1991)233 Cal.App.3d 670, 692 ["...to the extent that witnesses' statements and reports of witness interviews reflect merely what the witnesses said they are not work product.... To the extent that a report of witness interview reflects an attorney's mental processes it is exempted from discovery....

Suezaki v. Superior Court,
58 Cal.2d 166 at p. 178

Nacht & Lewis Architects, Inc. v. Superior Court(1996), 47 Cal.App.4th 214

Trade Center Properties Inc.. v. Superior Court (1960), 58 Cal.2d 166 [depo of attorney who had obtained witness statement prohibited ]

Shepherd v. Superior Court(1976) 17 Cal.3d 107 at p. [Citing Boehm case. Prosecutor's notes from witness interview protected as work product but work product terminated in this case]

People v. Boehm (1969), 270 Cal.App.2d 13, at p.21 [work product applies to prosecutor's notes ]

Thompson v. Superior Court(1997) supra [attorney notes]

Party's statement to insurance co. investigator not protected as work product [see attorney-client privilege case outline]

Clark v. Superior Court (1960), 177 Cal.App.2d 577, at p. 580 [Plt seeks own statement to insurance company investigator]

Dowell v. Superior Court (1956), 47 Cal.2d 483, [pre discovery & work product case]

Wilson v. Superior Court (1964), 226 Cal.App.2d 715 [Plt statement to investigator for insurance company not work product. Sanctions aff'd.]

CONTENTS

CASES

CASE OUTLINE

TOP

WAIVER OF WORK PRODUCT PROTECTION

Procedure

B of P on party asserting
In camera inspection may be appropriate; Note Evid.C.§915(a) and (b) amended in 2001 to prohibit in camera inspection of absolute work product and limit in camera inspection of qualified work product 

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990 P.2d 591[SC suggests in camera inspection to determine whether transmission to client or litigation counsel was done in confidence and aff'd court app instruction to conduct in camera inspection; court does not explain how a review of a document will illuminate the intent or confidentiality of the transmission; Note subsequent statutory amendment of EC 915]

BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240


Procedures for resolving privileges etc. issues when documents disclosed

In the Rico case, the Supreme Court confirmed certain ethical obligation which included proecedures for resolving privilege, work product and other issues for nondisclosure of documents.
Shortly thereafter, the Judicial Council proposed legislation establishing procedures for a party to reclaim attorney -client privileged and work product information applicable only to ESI.
There are significant differences between the two rules as set forth in the comparison table below

Rico v. Mitsubishi Motors
(2007), 42 Cal.4th 807

C.C.P. §2031.285

ESI Statutory Rule

Ethical duty applies to lawyer

Statutory duty applies to parties etc.

Applies to all privileges, work product, and confidential information  “or any other similar doctrine that would preclude discovery based on the confidential nature of the document.”

Applies to claims of privileged or work product

Recipient duty to refrain from using and notify producing party

Duty applies upon receipt of materials that
          “obviously appears” privileged
          reasonably apparent it was  inadvertently produced

Party asserting claim notifies recipient

Notice of claim & basis for claim

Refrain from exam except to determine possibly privileged nature

Recipient sequesters information and
retrieves from other persons if previously disclosed

Use or disclosure precluded until issue resolved


Recipient returns info or presents to court under seal

Parties resolve or resort to court for decision

Recipient makes motion w/in 30 days

of claim receipt and deposit into court


Conduct inconsistent with claim

Coito v. Superior Court (2012), 54  Cal.4th 480  [Use of witness statement to examine witness at deposition]

 
Laguna Beach County Water District v. Superior Court, (12/15/04, 4th dist. div 3), 124 Cal. App. 4th 1453  [“Thus, work product protection ‘is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation. [Citations.]’ [Citation.]” (OXY Resources California v. Superior Court (2004) 115 Cal.App.4th 874, 891.)"]

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP)
(2004),
115 Cal.App.4th 874 ["There is no statutory provision governing waiver of work product protection. ... However, California courts have recognized that the waiver doctrine is applicable to the work product rule as well as the attorney-client privilege....The work product protection may be waived "by the attorney's disclosure or consent to disclosure to a person, other than the client, who has no interest in maintaining the confidentiality ... of a significant part of the work product." ... Thus, work product protection "is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation...." (Raytheon, supra, 208 Cal.App.3d at p. 689.)

BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240, at p. 1261

Pillsbury Madison & Sutro v. Schectman (1997), 55 Cal.App.4th 1279 [attorney notes on or about documents improperly in attorney possession; citing Conn 196 Cal.App.3d 774]

Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405, [allowing  expert to testify from report when he had no independent recollection was a waiver of work product]

Kadelbach v. Amaral (1973), 31 Cal.App.3d 814, 821 [In discussing witness statements the  court cited two expert witness cases stating "Moreover, work product, itself, loses statutory protection when [p. 822] used as an offensive weapon for cross-examination or to refresh the recollection of a witness. (Bolles v. Superior Court (1971) 15 Cal.App.3d 962 [93 Cal.Rptr. 719]; Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 531 [51 Cal.Rptr. 511].)"]


Metro-Goldwyn-Mayer Inc. v. Superior Court (1994), 25 Cal.App.4th 242 ["The language of section 2018 makes clear the legislative intent to protect absolute work product from disclosure except in rare circumstances." Court Ap found the inequity of one side having critical information due to attorney who represented both in t/a taking position contrary to former client justified the application of the waiver doctrine.]

Failure to timely assert

C.C.P. 2030(g)[interrogs], 2031(g)[docs], 2032(h)(I)[med exam]; 2033(g)[admissions]


Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436

Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405

BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240 at p. 1261

Sheets v. Superior Court(1967), 257 Cal.App.2d 1

Boilerplate objections improperly made preserve the objections asserted though such conduct is sanctionable

Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513

Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181  Boiler plate objections preserve attorney-client and work product.

Intent to waive

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 214.  990 P.2d 591. [Transfer to client or to client's litigation counsel not a waiver.' "The sole exception to the literal wording of the statute which the cases have recognized is under the waiver doctrine[,] which has been held applicable to the work product rule as well as the attorney-client privilege." (BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App.3d at p. 1254, italics omitted; see 2 Jefferson, Cal. Evidence Benchbook (3d ed. 1997) § 41.14, p. 894 (2 Jefferson).) "[T]he attorney's absolute work product protection," however, "continues as to the contents of a writing delivered to a client in confidence." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260; see 2 Jefferson, supra, § 41.15, p. 894].) This is because "the client has an interest in the confidentiality of the work product ...." (2 Jefferson, supra, § 41.15, p. 894.) So, too, do other attorneys representing the client, such as Wells Fargo's litigation counsel, White & Case. "The protection [of the work product doctrine] precludes third parties not representing the client from discovery of [protected] writing[s]." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260.)'  In attorney-client context the court had noted. that it must be an  intentional relinquishment of known right; not disclosure in mistaken but good faith belief that law required it]

Williamson v. Superior Court(1978)21 Cal.3d 829 [sharing report with co-defendants]

Petterson v. Superior Court (1974), 39 Cal.App.3d 267

Laguna Beach County Water District v. Superior Court (2004), 124 Cal. App. 4th 1453 [no waiver when attorney disclosed to auditor of client]

CONTENTS

CASES

CASE OUTLINE

TOP

Disclosure by attorney without coercion ( see below re joint defense doctrine; see above re inadvertent disclosure See also attorney-client privilege outline)

Regents of the Univ. of California v. Superior Court (Aquila Merchant Services, Inc.) (2008), 165 Cal.App.4th 672 [Government coerced disclosure under threat of economic or legal ramification not a waiver]

 Citizens for Ceres v. Superior Court (2013), 217 Cal. App. 4th 889 Voluntary disclosure to government when interests are fundamentally divergent or adverse is a waiver.  Developer disclosure of AC & WP protected communications to city prior to approval of EIR waived both.

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874["There is no statutory provision governing waiver of work product protection. ... However, California courts have recognized that the waiver doctrine is applicable to the work product rule as well as the attorney-client privilege....The work product protection may be waived "by the attorney's disclosure or consent to disclosure to a person, other than the client, who has no interest in maintaining the confidentiality ... of a significant part of the work product." ... Thus, work product protection "is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation...." (Raytheon, supra, 208 Cal.App.3d at p. 689.)

Laguna Beach County Water District v. Superior Court (2004), 124 Cal. App. 4th 1453
An attorney disclosure of absolute work product in response to an auditor's inquiry on pending litigation is not a waiver.  Purpose of work product is protection from adversary of efforts in trial preparation.

"The primary question presented is whether, by sending letters containing work product to auditors for ...defendant, defendant’s lawyer waived the right to assert attorney work product protection. Because this disclosure did not contravene the purpose of the work product doctrine, there was no waiver, and defendant is not required to produce the letters."

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990 P.2d 591[Disclosure in confidence to client and to client's  litigation counsel not a waiver; followed BP Alaska Exploration]

BP Alaska Exploration v. Superior Court (1988),199 Cal.App.3d 1240 at p.1252, 1261 [ Delivery of absolute work product to client or interested 3rd person in confidence not a waiver; voluntary disclosure to others is a waiver ]

Lasky Haas v. Superior Court (1988), 172 Cal.App.3d 264 [transfer to client not a waiver]

Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405at p.411 ["The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document."]

Merritt v. Superior Court (1970), 9 Cal.App.3d 721, at p. 730-31

Petterson v. Superior Court (1974), 39 Cal.App.3d 267 at p. 272-73

Mize v. Atchison, Topeka & Santa Fe (1975), 46 Cal.App.3d 436, at p. 448

Kadelbach v. Amaral (1973), 31 Cal.App.3d 814, at p. 821-822 ["...work product, itself, loses statutory protection when used as an offensive weapon for cross-examination or to refresh the recollection of the witness."]

Disclosure to client not a waiver

Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 214,  990 P.2d 591

Fellows v. Superior Court ( )108 Cal.App.3d 55, at p. 65

BP Alaska Exploration v. Superior Court (1988),199 Cal.App.3d 1240, at p. 1261

Disclosure to agent of client

Eddy v. Fields (2004), 121 Cal.App. 4th 1543  [Disclosure to adversary is waiver. Dictum re disclosure to another attorney for a mutual client would not be a waiver since not an adversary party]

Laguna Beach County Water District v. Superior Court
(2004), 124 Cal. App. 4th 1453
An attorney disclosure of absolute work product in response to an auditor's inquiry on pending litigation is not a waiver.
"The primary question presented is whether, by sending letters containing work product to auditors for ...defendant, defendant’s lawyer waived the right to assert attorney work product protection. Because this disclosure did not contravene the purpose of the work product doctrine, there was no waiver, and defendant is not required to produce the letters."
"The ... documents at issue are two letters from [attorney] to ... defendant’s auditors. The letters were responses to audit inquiries where ... counsel for defendant, was asked to provide [the auditor] with information about pending or threatened litigation against defendant that might affect its financial condition. These letters are routinely sent by lawyers to auditors preparing financial statements on behalf of a mutual client."
Based on an in camera review [See Evid. C. § 915(a)] and inferences, the appellate court found the attorney "did not intend to waive protection. The top of each letter contains the notation 'ATTORNEY - CLIENT AND ATTORNEY WORK PRODUCT COMMUNICATION.' Disclosure of the information was not casual, unthinking, or even voluntary. Nothing in the record shows [the attorney] would have sent these letters without defendant’s request and a requirement imposed by at least good faith, if not a more stringent duty, to comply with the request....There is no evidence that [the accounting firm] did not intend to or in fact maintain the confidentiality of the information. Nothing in the record shows that any of the contents of the two letters would be or were disclosed in the audits. "
The court stated:
“‘The purpose of the work product doctrine is to protect information against opposing parties, rather than against all others outside a particular confidential relationship, in order to encourage effective trial preparation.’”  “Thus, work product protection ‘is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation.
Moreover, disclosure operates as a waiver only when otherwise protected information is divulged to a third party “‘who has no interest in maintaining the confidentiality....of a significant part of the work product.’

Disclosure to co-party's attorney; Joint Defense Doctrine recognized 

Meza v. H. Muehlstein & Co. (2009) ,  176 Cal.App.4th 969 [No. B201427. Second Dist., Div. Three. Aug. 18, 2009.] While affirming the disqualification of counsel due to conflict, the Appellate court concluded that the Joint Defense Doctrine is recognized in California and disclosure of work product to co-counsel is not a waiver.
The appellate court upheld the order disqualifying counsel due to conflict arising from counsel sharing information in the case before one lawyer joined the firm of the opposing side. Defense counsel's proposed CMC order permitted defense counsel to share information without it constituting a waiver of work product and defendants also agreed to share some costs of defense. In that order the trial court notes that "cooperation among counsel... is essential for the orderly and expeditious resolution of the litigation" and "dissemination of information of common interest among . . . defendants' counsel...shall be protected by attorney-client privilege" and work product. Counsel then shared work product. Thereafter, Counsel representing a former defendant in the action joined plaintiffs law firm. Remaining co-defendants moved to disqualify plaintiff's entire law firm. The motion was granted and upheld by the appellate court.
The appellate court held that substantial work product had been revealed and that denial of the disqualification "would undermine California's policy in favor of protecting attorney work product, its own CMC order, and the integrity and fairness of the proceedings." It also held:

*California recognizes the common interest doctrine. Under that doctrine, Lucent and the joining defendants did not waive protection of confidential attorney work product.
*work product protection is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation.
*"Under the common interest doctrine, an attorney can disclose work product to an attorney representing a separate client without waiving the attorney work product privilege if

(1) the disclosure relates to a common interest of the attorneys' respective clients;
(2) the disclosing attorney has a reasonable expectation that the other attorney will preserve confidentiality; and
(3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. (See OXY, supra, 115 Cal.App.4th at p. 891.) {Slip Opn. Page 12}"

The appellate court noted that "... defendant's attorney's disclosure of work product relating to the defendants' adverse interests results in a waiver of the attorney work product privilege. However, the disclosure of work product relating to the defendants' common interests does not result in a waiver so long as the second and third elements of the common interest doctrine are satisfied."

Raytheon v. Superior Court(1989) [factual issue re whether reasonably necessary to accomplish purpose of privilege]

Williamson v. Superior Court(1978), 21 Cal.3d 829[waiver based on violation of public policy against suppression of evidence; waiver by disclosure issue not reached]

Kerns Construction Co. v. Superior Court (1968), 266 Cal.App.2d 405 [voluntary disclosure of contents at depo]

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240, at p. 1261 [Waiver by voluntary disclosure, or consent to disclosure, to person other than client who has no interest in maintaining the confidentiality of the contents ]

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874["There is no statutory provision governing waiver of work product protection. ... However, California courts have recognized that the waiver doctrine is applicable to the work product rule as well as the attorney-client privilege....The work product protection may be waived "by the attorney's disclosure or consent to disclosure to a person, other than the client, who has no interest in maintaining the confidentiality ... of a significant part of the work product." ... Thus, work product protection "is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney's work product and trial preparation...." (Raytheon, supra, 208 Cal.App.3d at p. 689.)

Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874  [Not a privilege or expansion thereof but an application of the waiver principle that a disclosure to third parties can be made in appropriate circustances without waiving the privilege or work product protection: "...applies only to those documents and communications already protected from disclosure by the attorney-client privilege and the attorney work product doctrine, and it simply confirms the parties' agreement not to waive any applicable privileges by virtue of sharing privileged information on issues of common interest."  Elements: reasonable expectation information disclosed will remain confidential, disclosure  reasonably necessary for the accomplishment of the purpose for which the lawyer was consulted;  parties "have in common an interest in securing legal advice related to the same matter--and that the communications be made to advance their shared interest in securing legal advice on that common matter."

Armenta v. Superior Court
(James Jones Co.) (2002)101 Cal.App.4th 525. When parties on one side entered into a “joint prosecution agreement” qualified work product applied to expert's testing and report and prevented opposing party from interviewing or using reports or test results of experts. The effective date of the agreement preceded the retention and report which was covered by the agreement. The court found the expert consultation was the result of joint collaboration and was joint work product that could not be waived by only only party. In addition, at p.534, the court found the agreement protected the information: “The joint prosecution agreement likewise provides full protection to such information. Parties with common interests may share confidential information without waiving applicable protections. (U. S. ex rel. Burroughs v. DeNardi Corp. (S.D. Cal. 1996) 167 F.R.D. 680, 686.)”

Eddy v. Fields (2004), 121 Cal.App. 4th 1543  [Disclosure to adversary is waiver. Dictum re disclosure to another attorney for a mutual client would not be a waiver since not an adversary party]

Laguna Beach County Water District v. Superior Court (2004), 124 Cal. App. 4th 1453 [no waiver when attorney disclosed  absolute work product to auditor of client]

Inadvertent disclosure

Rico v. Mitsubishi Motors (2007),  42 Cal.4th 807 (Filed 12/13/07)   Recipient's ethical duty upon receipt of  inadvertently  produced documents.      Attorney disqualification upheld.  

“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.  The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.”

The Supreme Court determined a document, in toto, to be absolute work product and to have been inadvertently produced. It adopted the ethical standard set forth in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644.  It also agreed that the “standard applies to documents that are plainly privileged and confidential, regardless of whether they are privileged under the attorney-client privilege, the work product privilege, or any other similar doctrine that would preclude discovery based on the confidential nature of the document.”

The Supreme Court found no abuse of discretion and affirmed the disqualification of counsel as an appropriate remedy.

“Thus, ‘the record shows that Johnson not only failed to conduct himself as required under State Fund, [supra, 70 Cal.App.4th 644,] but also acted unethically in making full use of the confidential document.’  The Court of Appeal properly concluded that such use of the document undermined the defense experts’ opinions and placed defendants at a great disadvantage.  Without disqualification of plaintiffs’ counsel and their experts, the damage caused by Johnson’s use and dissemination of the notes was irreversible.”

Rico v. Mitsubishi Motors Corp. (2004),  116 Cal. App 4th 51 superseded by 42 Cal.4th 807 [ Case follows State Compensation and narrowly construes Aeorojet.  A document,  essentially considered to be clearly attorney notes and protected by absolute work product,  was obtained and used by opposing counsel. Both opposing counsel using the protected document and his expert were disqualified.  At p.24. of the slip opinion the court stated: "State Fund provided the decisional authority that was lacking in Aerojet. For cases following State Fund, there is an ethical duty immediately to disclose inadvertently received privileged information. More precisely, an attorney who inadvertently receives plainly privileged documents must refrain from examining the materials any more than is necessary to determine that they are privileged, and must immediately notify the sender, who may not necessarily be the opposing party, that he is in possession of potentially privileged documents."  The trial court had found that “...counsel knew it was a confidential work product document and violated his ethical duty by failing to notify opposing counsel and using the document.”]

B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240, at p.1261 [ Voluntary disclosure or consent thereto; conduct inconsistent with claim ]

Aerojet General Corp. v. Transport Indemnity Ins.(1993), 18 Cal.App.4th 996 [AC claimed in complex document case after inadvertent disclosure; underlying facts in doc. were discoverable; 128.5 sanctions sought for investigating & plugging leak: Tr.Ct.granted, Ct.Ap.rev'd.on sanctions issue; dictum suggests innocent party can use document ]

Tender of issue

Schlumberger Ltd. v. Superior Court(1981), 115 Cal.App.3d 386

Popelka, Allard McCowan & Jones v. Superior Court(1980), 107 Cal.App.3d 496[Not by denial of probable cause]

BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240

Kaiser Foundation Hospitals v. Superior Court (1998), 66 Cal.App.4th 1217

Medical experts C.C.P. 2032

Kennedy v. Superior Court(1998), 64 Cal.App.4th 674

Queen of Angels Hospital v. Superior Court(1976), 57 Cal.App.3d 370

CONTENTS

CASES

CASE OUTLINE

TOP




EXCEPTIONS

Breach of duty: C.C.P.§2018.080

Elements:

Action between attorney & client
Relevant to breach of duty arising from attorney-client relationship

See Metro-Goldwyn-Mayer Inc. v. Superior Court (1994), 25 Cal.App.4th 242 ["Waiver" of absolute work product when attorney took position opposite of client in litigation arising from merger in which attorney represented both corporporation and shareholders]

Crime - Fraud exception inapplicable to absolute work product

State Farm Fire & Casualty Co.(1997), 54 Cal.App.4th 625, 650. ["In California, the crime/fraud exception only applies to attorney-client privileged materials; it does not apply to the work product privilege. (BP Alaska Exploration, Inc. v. Superior Court, supra, 199 Cal.App.3d at p. 1251; see also Geilim v. Superior Court, supra, 234 Cal.App.3d at p. 175.) However, the same analysis we utilized for the crime/fraud exception leads to the inevitable conclusion that refusal to allow disclosure of the information contained in the Zuniga declarations would not only unfairly prejudice real parties, it would also result in an injustice."]

Wellpoint Health Networks v. Superior Court (1997), 59 Cal.App.4th 110  [An important distinction between the attorney-client privilege and the attorney work product doctrine was discussed in BP Alaska, wherein the court held: "The Evidence Code section 956 crime-fraud exception does not apply to documents protected by the work product rule."]

BP Alaska Exploration v. Superior Court (1988) [Crime-Fraud exception is inapplicable to absolute work product; failure to assert due to misunderstanding of law not a waiver ]

Geilim v. Superior Court(1991), 234 Cal.App.3d 166  [Trial court ordered production of attorney's documents, prior to a a hearing to determine privilege issues,  seized pursuant to search warrrant based on its review of the ex parte application for the warrant  and a determination that the crime fraud exception applied.  The appellate court required an in camera review of documents and determination of the privilege issue before unsealing the documents. In dictim the court stated the crime fraud exception does not apply to absolute work product while noting the trial court had not addressed the issue, citing BP Alaska Exploration..

People v. Superior Court(1995), 37 Cal.App.4th 1757, 1768 [finding of probable cause for issuance of search warrant of attorney's papers is not the equivalent of a finding sufficient to establish a crime fraud exception to attorney-client privilege; work product is different statute that does not contain such exception; citing Gelim case]

Contra  Wachtel v. Guardian Life Ins. (D.N.J. 2007), 2007 U.S. Dist. LEXIS 43842 (June 18, 2007) “Rather, under federal law, the exception can encompass communications and attorney work product 'in furtherance of an intentional tort that undermines the adversary system itself.' See Madanes v. Madanes, 199 F.R.D. 135, 149 (S.D.N.Y. 2001); see also In re Sealed Case, 219 U.S. App. D.C. 195, 676 F.2d 793, 812 (D.C. Cir. 1982). This may include communications and work product used in furtherance of the spoliation of evidence. Rambus, Inc. v. Infineon Tech. AG, 220 F.R.D. 264, 283 (E.D. Va. 2004).”
“n2 The crime-fraud exception also applies to attorney work product, which "loses its protected status if it relates to efforts to facilitate a crime or fraud, or to conceal illegal conduct, obstruct justice, or subvert the legal system." See Gutter v. E.I. Dupont De Nemours, 124 F. Supp. 2d 1291, 1294 n. 2 (S.D. Fla. 2000); see also In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 802-03 (3d Cir. 1979).”