Have you ever wondered how the work product doctrine works when you hire a consultant who may or may not become your expert. Trial Attorney Lee Previant, from Los Angeles, wrote this great article titled “Attorney Work Product Doctrine And Experts for Advocate Magazine that explains how it all works.  Enjoy.

**************************************************************************************************

As any litigator is undoubtedly aware, expert witnesses are necessary whether to offer evidence required to meet your burden of proof or to offer evidence to combat attacks on causation.  Likewise, communications with your expert witnesses are necessary.  This includes communications to 1) retain the expert witness, 2) communications providing them with case specific materials so they may formulate their opinions, and 3) communications providing scientific, technical, professional texts, treatises, journals, or similar publications to assist the expert in forming their opinion.  In addition, an attorney may communicate with an expert for the sole purpose of obtaining advisory opinions.

An expert witness is defined as someone who has “special knowledge, skill, experience, training, or education sufficient to qualify him[/her] as an expert on the subject to which his[/her] testimony relates.”  (Evid. Code § 720.)

Once qualified, an expert may offer an opinion “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact[.]” (Evid. Code § 801(a).)  Such an opinion can be based on matters “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code § 801(b).)  The type of material an expert may rely upon is quite broad and encompasses inadmissible evidence, such as hearsay.  Simply put, experts wield incredible power in litigation and the attorney’s communications with them should be deliberate and strategic.

A primary issue in using experts is: what communications are protected by the attorney work product doctrine?  Pursuant to Code of Civil Procedure section 2034.210 subdivision (c), if a proper demand has been made under section 2034.210, subdivision (a), then a party must produce “all discoverable reports and writings, if any,” made by an expert in the course of forming their opinion.  However, no definition of “discoverable” is found in Code of Civil Procedure sections 2034.010-2034.710.  Once an expert has been designated under Section 2034.210 all of the expert’s present and previous opinions as well as any communications the expert might have had with the attorney, clients, other retained experts, and any expert notes or documents provided to the expert are discoverable.  (See Deluca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 690; Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th 1067, 1079; County of Los Angeles v. Superior Court (Martinez) (1990) 224 Cal.App.3d 1446, 1458; Williamson v. Superior Court (1978) 21 Cal3d 829, 835.)

Indeed, “[when] it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause.  At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others. Such evaluation properly includes appropriate pretrial discovery.”  (Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 203.)

Continue Reading An Attorney’s Relationship with their Expert and the Work Product Doctrine

legal gavel and law books, on white

 

Can a trial court order a party to disclose potentially privileged information because the party’s privilege log did not provide sufficient information for the court to evaluate whether the privilege applies?  According to the Fourth District Court of Appeal, Division Three in Catalina Island Yacht Club v. The Superior Court of Orange County filed December 4, 2015 the answer is NO!

Continue Reading No Waiver of Privileges for Inadequate Privilege Log

Paper Pulling Between LawyersOn August 14, 2012, Judge William A. Mayhew of Stanislaw Superior Court issued his Notice of Hearing on Issues Re Remand (pdf)in the case of Debra Coito v. State of California.  The order requested that the following issues to be briefed:

  1. Does the absolute privilege apply to all or any part of the recorded witness interviews?
  2. Does the Plaintiff contend that they can make a sufficient showing of unfair prejudice or injustice under C.C.P. Section 2018.030(b) such as to allow discovery as to any of the interviews that may be found to be not absolutely privileged?
  3. As to interrogatory 12.3, does the STATE contend that answering said interrogatory would result in opposing counsel taking undue advantage of the attorney for the STATE’s industry of efforts or that answering said interrogatory would reveal the attorney of the STATE’s tactics, impressions or evaluation of the case? Continue Reading COITO v. SUPERIOR COURT–Is It Heading Back to the Supreme Court?

Secret.jpg

The absence of a reasonable expectation of confidentiality in the content of an independent witness’ signed or recorded verbatim statement precludes a finding of work-product protection.   That is what Petitioner Debra Coito’s Answering Brief on the Merits states in the case of Coito v. Superior Court (2010)182 Cal. App. 4th 758 (pdf) which is currently pending in the California Supreme Court. 

Continue Reading Reasonable Expectation of Confidentiality is the “Dispositive Question” for Determining the Existence of Work-Product Protection

Microphone.jpgI received a copy of Petitioner Debra Coito’s Answering Brief on the Merits in the case of Coito v. Superior Court of the County of Stanislaus which is currently pending in the California Supreme Court. As you many of you are aware, Coito v. Superior Court (2010)182 Cal. App. 4th 758 (pdf)refused to follow the 14-year old case Nacht & Lewis Architect, Inc. v. Superior Court (1996) 47 CA4th 214 (pdf) stating that witness statements are not attorney work product. Below is Petitioner’s argument that the Court of Appeal correctly held that signed or recorded verbatim statements of independent witnesses are potential evidence.

Continue Reading Signed or Recorded Verbatim Statements of Independent Witnesses are Potential Evidence

Knights Fighting.jpgOfficial Form Interrogatories–General (Disc-001)  prepared by the Judicial Council were intended to be used to cover basic matters as well as being a foundational discovery device in personal injury and contract cases.  They also contained sub-parts which were not allowed when serving special interrogatories and they were not subject to the “Rule of 35”.  See California Code of Civil Procedure §§2030.030(a)(2) and 2030.060.  Their use was usually the first volley in the discovery battle.

For years the Courts had found that the Form Interrogatories were objection proof as to form with minor exceptions.  These minor exceptions usually involved case specific issues such as  checking the box with the definition of “INCIDENT” versus creating your own definition for “INCIDENT” and cases which involve complex business transactions.   

Continue Reading Are Official Form Interrogatories Objection Proof?