The opinion
Filed 3/24/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ROBERT A. CURTIS, B292967
Petitioner, (Los Angeles County
Super. Ct. No. BC664688)
v.
THE SUPERIOR COURT OF
LOS ANGELES COUNTY,
Respondent;
CALIFORNIA EMPLOYMENT
LAWYERS ASSOCIATION,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Holly J. Fujie,
Judge. Appeal dismissed. Writ petition denied.
Foley Bezek Behle & Curtis, Thomas G. Foley, Jr., Aaron L.
Arndt and J. Paul Gignac for Petitioner.
Alexander Krakow + Glick, Alexander Morrison + Fehr,
J. Bernard Alexander, III, and Tracy L. Fehr; The deRubertis
Law Firm and David M. deRubertis for Real Party in Interest.
__________________________
Robert A. Curtis, an attorney and third-party witness in
the underlying action, appeals from an order granting the motion
of the California Employment Lawyers Association (CELA) to
compel Curtis to provide deposition testimony identifying a
nontestifying expert whom Curtis consulted in prior litigation. In
the underlying action, CELA alleges an unknown CELA member
(Doe 1) sent Curtis, a non-member, information received from a
members-only email distribution list in violation of a
confidentiality agreement. Curtis then disclosed the confidential
information from Doe 1 to his client, and the information was
filed in opposition to a motion for attorneys’ fees filed in the prior
action. Curtis contends the trial court abused its discretion in
compelling him to testify because the identity of Doe 1—as a
nontestifying expert—is entitled to both absolute and qualified
attorney work product protection.
The identity of Curtis’s nontestifying expert is not entitled
to absolute work product protection because it is not “a writing”
that would reveal Curtis’s “impressions, conclusions, opinions, or
legal research or theories.” (Code Civ. Proc., § 2018.030, subd.
(a).)1 However, if an attorney can show that disclosure of the
identity of a nontestifying expert would result in opposing
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
counsel taking undue advantage of the attorney’s industry or
efforts or impair the attorney’s ability to prepare and investigate
a case, the identity may be entitled to protection under the
qualified work product privilege. In that case, the identity is only
discoverable if the party seeking discovery can establish that
“denial of discovery will unfairly prejudice the party seeking
discovery in preparing that party’s claim or defense or will result
in an injustice.” (§ 2018.030, subd. (b).)
The identity of Doe 1 is entitled to at most qualified
attorney work product protection, and the trial court did not
abuse its discretion in finding CELA met its burden to
demonstrate denial of disclosure would unfairly prejudice CELA
in prosecuting the action and only minimally disadvantage
Curtis. We agree with CELA that Curtis has appealed from a
nonappealable discovery order, but we treat Curtis’s appeal as a
petition for writ of mandate. We dismiss the appeal and deny the
petition.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Saccio Action and Curtis’s Consultation with Doe 12
Curtis is a named partner at the law firm Foley Bezek
Behle & Curtis, LLP (FBBC), which has represented Santa
Barbara businessman Antonio Romasanta in a variety of legal
matters for more than 30 years. In November 2016 Charles
Saccio, an employee at a hotel owned and operated by
Romasanta, filed an age discrimination lawsuit against
2 The factual background is taken from the evidence
submitted by the parties in connection with CELA’s motion to
compel.
3
Romasanta in the Santa Barbara County Superior Court
(Saccio v. Romasanta et al. (Super. Ct. S.B. County,
No. 15CV00672) (the Saccio action)). Although Romasanta
retained a different law firm as his trial counsel in the Saccio
action, he also retained Curtis to assist with trial preparation,
trial strategy, and posttrial motions.
Curtis does not specialize in employment law, so when
employment issues arise for his business clients, Curtis routinely
consults with nontestifying experts to advise him on employment
law, help him investigate and prepare a legal strategy, and
provide a plaintiff’s perspective. Curtis does not have the experts
testify at trial or prepare a written report.
In the Saccio action, Curtis contacted Doe 1 a few weeks
before opening statements and starting using Doe 1 as a
nontestifying expert.3 Doe 1 is an attorney who specializes in
representation of plaintiffs in employment law matters. Over the
course of the trial, Curtis consulted Doe 1 on multiple occasions.
After the jury rendered a verdict in favor of Saccio, Curtis
continued to use Doe 1 to evaluate potential weaknesses in the
evidence relied on by Saccio’s attorney in connection with
Romasanta’s motions for judgment notwithstanding the verdict
and for a new trial. After Romasanta’s posttrial motions were
denied, Doe 1 assisted Curtis in developing strategies for
opposing Saccio’s motion for attorneys’ fees.
3 Curtis testified in his deposition there was no document
confirming his consulting agreement with Doe 1; Doe 1 did not
provide a bill for his services; and Curtis had not seen a record of
any checks paid to Doe 1. However, Curtis testified Doe 1 was
paid for his services.
4
B. The Secrest Posting on the CELA Listserv
CELA is a nonprofit corporation “dedicated to advancing
and protecting the interest of California workers and assisting
the attorneys who represent employees in various matters,” and
it offers members access to online depositories and email
“Listservs” that members use to exchange ideas and strategies.
On November 22, 2016, the day the jury returned a verdict in the
Saccio action, Saccio’s lead trial attorney, David Secrest, posted a
message describing his victory on CELA’s online Listserv called
“CELA Employment Law Discussion.” Secrest’s posting, which
was available to 1,300 CELA members, was entitled “Small
Victories: Discrimination/Harassment verdict,” and it provided a
colorful account of the strategies and factors Secrest believed had
contributed to a $400,000 jury verdict for Saccio.
Doe 1, who is alleged to be a member of CELA,4 forwarded
an email containing Secrest’s posting to Curtis. Curtis and the
other attorneys at FBBC are not members of CELA.5 Curtis in
turn forwarded the email containing the Secrest posting to
Romasanta, and the email was filed as an exhibit in support of
Romasanta’s opposition to Saccio’s motion for attorneys’ fees.
Saccio moved to strike the Secrest posting on the grounds it
contained attorney work product and attorney-client privileged
matter. CELA filed an amicus curiae brief supporting Saccio’s
4 Curtis testified in his deposition, “I believe [Doe 1] is a
member of CELA, but I don’t know that for a fact. I just know
he’s a plaintiff’s side employment attorney.”
5 Curtis attested in his declaration opposing CELA’s motion
to compel that he was unaware a CELA Listserv existed at the
time he received the Secrest posting.
5
position. The trial court in the Saccio action6 denied the motion
to strike, ruling Secrest waived any privilege in his trial
summary by sharing it widely on CELA’s Listserv. On May 5,
2017 the court awarded Saccio attorneys’ fees. Romasanta
passed away shortly after the conclusion of the Saccio action.
C. CELA’s Lawsuit and Motion To Compel
On June 9, 2017 CELA filed the underlying action in the
Los Angeles County Superior Court. CELA’s complaint alleged
causes of action for breach of contract and injunctive relief
against five Doe defendants who were members of CELA. CELA
alleged that its members are required to enter a written joint
prosecution and confidentiality agreement to receive access to its
confidential materials, including information on its Listserv.
CELA alleged further on information and belief, “[O]n or about
November 22, 2016, [Doe] 1 forwarded CELA [c]onfidential
[m]aterial to a third party, a non-CELA member [recipient], in
violation of the conditions of the CELA [c]onfidentiality
[a]greement. This lawsuit seeks to determine the identity of
[Doe] 1 and any other violators of the CELA contractual
agreement related to this disclosure, in order to seek monetary
and injunctive relief consistent with the CELA [c]onfidentiality
[a]greement.” The complaint alleged Does 1 through 5 “must by
necessity be identified by way of discovery.”
On September 25, 2017 CELA subpoenaed Kathryn
Romasanta-Eckert, the executor of Romasanta’s estate, to obtain
unredacted copies of communications relating to Romasanta’s
receipt of the Secrest posting and information identifying the
6 Santa Barbara County Superior Court Judge Donna D.
Geck.
6
source of the posting. Romasanta-Eckert moved to quash the
subpoena, asserting the requested information “relate[d] directly
to communications and advice between Antonio Romasanta and
his attorneys” and was protected by the attorney-client privilege.
The trial court7 denied the motion, holding that although the
contents of communications between Romasanta and his attorney
were privileged, “other identifying information concerning the
communication, such as the name of the attorney, the date of the
communication, and . . . the lawyer’s email address would not be
privileged.” In compliance with the court’s order, Romasanta-
Eckert provided the email which had been sent to Romasanta.
The email identified Curtis as the attorney who forwarded the
Secrest posting, but it did not identify Doe 1.
CELA’s counsel deposed Curtis on April 18, 2018 and asked
him to identify Doe 1. Curtis timely served objections in advance
of the deposition, and at the deposition Curtis’s attorney
instructed Curtis not to answer questions asking him to disclose
the identity of Doe 1, asserting the attorney work product
privilege. CELA ultimately suspended the deposition so the
parties could resolve the issue of Doe 1’s identification by written
motion.
On June 25, 2018 CELA filed a motion to compel Curtis’s
deposition testimony, arguing the identity of Doe 1 was entitled
only to qualified work product protection because CELA was not
seeking any attorney “impressions, conclusions, opinions, or legal
research or theories” (§ 2018.030, subd. (a)), and the identity of
Doe 1 would not convey “tactical information” respecting the
Saccio action. CELA further argued it would be unable to
determine the identity of Doe 1 without Curtis’s testimony.
7 Judge Michael Johnson.
7
CELA’s counsel averred in a supporting declaration, “[CELA] has
attempted to use internal measures, such as its [i]nformation
[t]echnology consultants and an internal investigation in order to
determine the identity of [Doe 1], the individual who retrieved
the Secrest [e-]mail and forwarded it to Mr. Curtis. Based on the
tools available to CELA, it does not have the ability to ascertain
the identity of [Doe 1], other than by way of obtaining disclosure.”
In his opposition to the motion to compel, Curtis argued the
identity of Doe 1 was entitled to absolute work product protection
because disclosure of Doe 1’s identity would convey tactical
information in that it would reveal Curtis’s strategy of using a
plaintiff’s-side employment lawyer as a nontestifying consultant
“and could result in [Curtis] being unable to use [Doe 1’s] services
in the future.” CELA’s members would be able to gain a tactical
advantage against Curtis in future employment law matters by
engineering retention conflicts. Curtis also asserted that even if
the identity of Doe 1 were entitled only to qualified protection, a
balancing of CELA’s interest in disclosure against the salutary
purposes of work product protection weighed against disclosure.
Curtis would be hampered in his ability to prepare future cases
using Doe 1, and consultants would be discouraged from working
with attorneys for fear that a later unmasking would harm their
reputation and business.
After a hearing, on September 24, 2018 the trial court8
granted CELA’s motion to compel. The court concluded Doe 1’s
identity was not subject to attorney work product protection
because Doe 1 was a fact witness. The court explained, “[Doe 1]
was only a consulting expert for purposes of the Saccio action.
8 The case was reassigned to Judge Holly Fujie on
February 14, 2018.
8
For purposes of this action, CELA is not interested in what
Curtis may have learned from the individual as part of his
research or preparation for the [Saccio] case. CELA seeks only to
question the individual about an event he witnessed (or
potentially was responsible for), namely the removal of an email
from the confidential ListServ, and its distribution to non-CELA
members. [¶] . . . [¶] . . . [T]he identity of a fact witness is not
subject to any work product protection, even if that witness was
retained as a nontestifying consultant in an unrelated lawsuit.”
The court also held that even if Doe 1 were characterized as a
nontestifying expert rather than a fact witness, Doe 1’s identity
would be subject at most to qualified work product protection,
and because CELA demonstrated it had no other means to
identify Doe 1, CELA met its burden of demonstrating prejudice
to overcome the qualified privilege.
Curtis timely appealed. His notice of appeal states,
“Because Mr. Curtis is a non-party, and this order resolves all
issues between Mr. Curtis and [CELA], this order is appealable
under the collateral order doctrine. As a non-party, Mr. Curtis
will be unable to appeal from the final judgment in the
underlying litigation.”
DISCUSSION
A. We Review Curtis’s Appeal from the Order Compelling
Disclosure as a Writ Petition
In its respondent’s brief, CELA contends the trial court’s
order granting CELA’s motion to compel is not immediately
appealable because the action is still pending below and there
has been no final judgment. Curtis contends the discovery order
9
is immediately appealable under the collateral order doctrine or
under an exception to the nonappealability of discovery orders, or
alternatively, we should treat his appeal as a writ petition. In
light of the unusual circumstances, we treat Curtis’s appeal as a
writ petition pursuant to Olson v. Cory (1983) 35 Cal.3d 390, 401
(Olson).
“The right to appeal is wholly statutory. [Citation.] . . .
[S]ection 904.1 lists appealable judgments and orders. Chief
among them is a ‘judgment’ that is not interlocutory, e.g., a final
judgment. A judgment is the final determination of the rights of
the parties (Code Civ. Proc., § 577) ‘“‘when it terminates the
litigation between the parties on the merits of the case and leaves
nothing to be done but to enforce by execution what has been
determined.’”’” (Dana Point Safe Harbor Collective v. Superior
Court (2010) 51 Cal.4th 1, 5 (Dana Point), fn. omitted; accord,
Finance Holding Co., LLC v. Molina (2018) 29 Cal.App.5th 663,
673.) “‘“It is not the form of the decree but the substance and
effect of the adjudication which is determinative. As a general
test, which must be adapted to the particular circumstances of
the individual case, it may be said that where no issue is left for
future consideration except the fact of compliance or
noncompliance with the terms of the first decree, that decree is
final, but where anything further in the nature of judicial action
on the part of the court is essential to a final determination of the
rights of the parties, the decree is interlocutory.”’” (Dana Point,
at p. 5.)
CELA is correct that “[g]enerally, discovery orders are not
appealable.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879,
885 (H.B. Fuller); accord, Warford v. Medeiros (1984)
160 Cal.App.3d 1035, 1040 (Warford).) “The rationale for this
10
rule is that in the great majority of cases the delay due to interim
review is likely to result in harm to the judicial process by reason
of protracted delay [citations] and discovery orders may be
reviewed on appeal from a final judgment on the merits.”
(Warford, at p. 1041.) However, appellate courts have recognized
an exception to this general rule for discovery orders issued in
California requiring production of information to be used in an
action pending in another jurisdiction, which orders the courts
have found are final and appealable. (See Adams v. Woods (1861)
18 Cal. 30, 31 (Adams) [“[s]uch an intervention, involving new
and distinct rights, and being limited and spent by the final
order, can scarcely be considered as merely interlocutory”];
H.B. Fuller, at p. 885 [where plaintiff litigating in Minnesota
against an unknown former employee who allegedly posted
confidential information online served a California subpoena to
compel an Internet service provider to identify the defendant, the
denial of the Internet service provider’s motion to quash was an
appealable final order]; Warford, at p. 1041 [“we think an
exception to the general rule exists where, as here, no final
review of the underlying action will take place in a California
forum”].)
Courts have also treated collateral orders as appealable,
holding that “‘[w]here the trial court’s ruling on a collateral issue
“is substantially the same as a final judgment in an independent
proceeding” [citation], in that it leaves the court no further action
to take on “a matter which . . . is severable from the general
subject of the litigation” [citation], an appeal will lie from that
collateral order even though other matters in the case remain to
be determined.’” (In re Marriage of Grimes & Mou (2020)
45 Cal.App.5th 406, 418; accord, Muller v. Fresno Community
11
Hospital & Medical Center (2009) 172 Cal.App.4th 887, 898
(Muller) [“‘“A necessary exception to the one final judgment rule
is recognized where there is a final determination of some
collateral matter distinct and severable from the general subject
of the litigation. If, e.g., this determination requires the
aggrieved party immediately to pay money or perform some other
act, he is entitled to appeal even though litigation of the main
issues continues.”’”].)
In some respects, the order compelling Curtis to identify
Doe 1 is analogous to the out-of-state discovery orders addressed
in Adams, H.B. Fuller, and Warford and the collateral order
doctrine. Curtis is a third party to CELA’s action, and the trial
court’s order compelling him to identify Doe 1 “leave[s] nothing to
the party against whom judgment is rendered except to comply.”
(Dana Point, supra, 51 Cal.4th at p. 11.) Curtis testified he is not
a member of CELA and had no prior knowledge of the CELA
Listserv. Thus, he is unlikely to become a party to this action,
and he has already submitted to a deposition at which he
testified as to his knowledge of the relevant facts except for
identification of Doe 1 (although Curtis may be the subject of
future discovery requests once he discloses the identity of his
expert witness). As a nonparty, he will not have a right to obtain
review of the discovery order at any later time in the proceeding
(for example, postjudgment). Absent review of the discovery
order, Curtis will be in the unenviable position of having to
comply with an order he contends would require disclosure of
privileged information or potentially facing contempt for his
failure to comply.
But unlike the out-of-state discovery orders for which there
was no pending action in California, the discovery order here is
12
directly related to the pending lawsuit in California in which
CELA is a party. Likewise, in contrast to cases applying the
collateral order doctrine, the discovery order here is not collateral
to the pending action. (See, e.g., Muller v. Fresno Community
Hospital & Medical Center, supra, 172 Cal.App.4th at pp. 904-
905 [order sanctioning defendants for alleged misconduct during
second trial appealable as collateral order where order would
likely not be reviewable after third trial, if any]; Apex LLC v.
Korusfood.com (2013) 222 Cal.App.4th 1010, 1016 [order
awarding appellate attorneys’ fees in prior appeal reviewable as
collateral order because it was “‘distinct and severable’ from the
subject matter of the underlying litigation”].) The trial court’s
order staying the underlying action pending resolution of Curtis’s
appeal underscores the centrality of the discovery issue to the
underlying action.
We therefore dismiss the appeal. However, in light of the
unusual circumstances present here, we opt to treat the appeal as
a petition for writ of mandate. (See Olson, supra, 35 Cal.3d at
p. 401 [courts have the “power to treat the purported appeal as a
petition for writ of mandate,” but the power “should not [be]
exercise[d] . . . except under unusual circumstances”]; Williams v.
Impax Laboratories, Inc. (2019) 41 Cal.App.5th 1060, 1071-1072
[“‘An appellate court has discretion to treat a purported appeal
from a nonappealable order as a petition for writ of mandate, but
that power should be exercised only in unusual circumstances.’”].)
The Olson court considered five factors in holding it was
appropriate to treat the appeal as a petition for a writ: Whether
“(1) requiring the parties to wait for a final judgment might lead
to unnecessary trial proceedings; (2) the briefs and record
included, in substance, the necessary elements for a proceeding
13
for a writ of mandate; (3) there was no indication the trial court
would appear as a party in a writ proceeding; (4) the
appealability of the order was not clear; and (5) the parties urged
the court to decide the issues rather than dismiss the appeal.”
(Hall v. Superior Court (2016) 3 Cal.App.5th 792, 807 [applying
Olson factors in treating as a petition for writ of mandate an
appeal from an order denying a petition challenging the
determination by the Department of Motor Vehicles that
petitioner’s license was properly revoked but remanding for a
new hearing because the hearing officer had been found guilty of
accepting a bribe in another matter]; accord, Turman v. Superior
Court (2017) 17 Cal.App.5th 969, 979 [treating as petition for
writ of mandate an appeal from an order finding only one of three
defendants was an employer for purposes of wage and hour
claims and partially denying class certification]; City of Los
Angeles v. Superior Court (2015) 234 Cal.App.4th 275, 280-281
[treating as petition for writ of mandate an appeal from an order
reversing hearing officer’s decision that tenant did not qualify as
“handicapped” for purposes of receiving greater amount of
relocation assistance but remanding for hearing officer to conduct
new hearing, because the appeal “presents a question of public
importance, the parties have fully briefed the propriety of the
trial court’s ruling, and both parties desire a resolution of the
merits of the appeal”].)
As the Supreme Court explained in Olson in treating as a
petition for writ of mandate an appeal from an interlocutory
order under section 437c determining plaintiffs were not entitled
to recover interest on retroactive salary and pension payments,
“To require the parties to wait for resolution of plaintiffs’ interest
claim until disposition of all matters yet to be resolved by the
14
trial court might lead to unnecessary trial proceedings since, for
example, the award of attorney fees might well be influenced by
final determination of the interest claim. Thus the record
sufficiently demonstrates the lack of adequate remedy at law
necessary for issuance of the writ.” (Olson, supra, 35 Cal.3d at
pp. 400-401.)
Here, the trial court’s order requiring Curtis to disclose the
name of his expert witness may never be appealable. If Curtis
discloses the name, appeal of the court’s discovery order will
become moot. If Curtis refuses to disclose the name of his expert,
CELA’s only option to avoid dismissal of the case (assuming it
cannot otherwise discover the identity of the Doe defendants)
would be to seek to hold Curtis in contempt. Although a
contempt order is reviewable by a petition for extraordinary writ
(People v. Gonzalez (1996) 12 Cal.4th 804, 816; In re M.R. (2013)
220 Cal.App.4th 49, 64-65), it would be unfair to subject Curtis to
possible contempt without the ability to adjudicate whether his
claim of privilege is meritorious. The lack of an adequate remedy
at law for Curtis supports our consideration of Curtis’s appeal as
a petition for writ of mandate.9
Curtis should have more appropriately sought relief in the
first instance by filing a petition for writ of mandate to protect
his claim of privilege. (See O’Grady v. Superior Court (2006)
139 Cal.App.4th 1423, 1431-1432 [issuing writ of mandate
directing trial court to grant third party’s motion for protective
9 In its respondent’s brief, CELA argues there is no urgency
for us to review Curtis’s claim of privilege because he could
simply disclose his expert’s name, then let the expert seek a
remedy for the disclosure. But this alternative would not address
Curtis’s right to claim the identity of his expert is privileged.
15
order to prevent disclosure of information on Web sites]; Rancho
Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1542,
1552 [issuing writ of mandate ordering trial court to grant motion
to quash filed by third party publisher of newspaper with respect
to subpoena seeking disclosure of documents that would reveal
identity of anonymous authors of newspaper advertisements]; see
also Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th
725, 741 [extraordinary writ relief appropriate to review order
granting discovery over party’s claim of attorney-client privilege];
Bank of America, N.A. v. Superior Court (2013) 212 Cal.App.4th
1076, 1101-1102 [review of discovery order appropriate where
petitioning party claimed privilege against disclosure]; KSDO v.
Superior Court (1982) 136 Cal.App.3d 375, 386 [issuing writ of
mandate directing trial court to vacate order requiring defendant
reporter to produce his investigation notes].) But, as in Olson,
this matter is fully briefed and contains the necessary elements
for a proceeding for a writ of mandate, and there is no indication
the trial court would elect to appear in a writ proceeding. It
would serve no purpose at this point to require Curtis to file a
writ petition and have the parties submit the identical briefing on
the petition.
B. Standard of Review
“A trial court’s determination of a motion to compel
discovery is reviewed for an abuse of discretion.” (Costco
Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733;
Williams v. Superior Court (2017) 3 Cal.5th 531, 540 [“We review
a trial court’s grant or denial of a motion to compel discovery for
an abuse of discretion.”]; see City of Los Angeles v. Superior Court
(2017) 9 Cal.App.5th 272, 282 [“Generally, ‘[t]he standard of
16
review for a discovery order is abuse of discretion, because
management of discovery lies within the sound discretion of the
trial court.’”] “‘A reviewing court generally will not substitute its
opinion for that of the trial court and will not set aside the trial
court’s decision unless “there was ‘no legal justification’ for the
order granting or denying the discovery in question.”’”
(Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, 1085;
accord, Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) “An
order that implicitly or explicitly rests on an erroneous reading of
the law necessarily is an abuse of discretion.” (Williams, at
p. 540; accord, Property Reserve, Inc. v. Superior Court (2016)
6 Cal.App.5th 1007, 1018.)
C. Attorney Work Product Privilege
“In California, an attorney’s work product is protected by
statute. (Code Civ. Proc., § 2018.010 et seq.).” (Coito v. Superior
Court (2012) 54 Cal.4th 480, 485 (Coito).) Section 2018.030,
subdivision (a), provides for an absolute protection from
disclosure: “A writing that reflects an attorney’s impressions,
conclusions, opinions, or legal research or theories is not
discoverable under any circumstances.” By contrast,
section 2018.030, subdivision (b), provides for a qualified
protection from disclosure: “The work product of an attorney,
other than a writing described in subdivision (a), is not
discoverable unless the court determines that denial of discovery
will unfairly prejudice the party seeking discovery in preparing
that party’s claim or defense or will result in an injustice.” (See
Coito, at p. 488; Lasky, Haas, Cohler & Munter v. Superior Court
(1985) 172 Cal.App.3d 264, 271 (Lasky) [work product privilege
“recognizes what is termed an ‘absolute’ privilege as to writings
17
containing the attorney’s impressions, opinions, legal research
and theories and recognizes a ‘qualified’ privilege as to all written
materials and oral information not reflecting the attorney’s legal
thoughts”].) “The language of section 2018.030 does not
otherwise define or describe ‘work product.’ Courts have resolved
whether particular materials constitute work product on a case-
by-case basis.” (Coito, at p. 488.)
The purpose of the privilege is twofold: 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.” (§ 2018.020, subds. (a) & (b).)
The work product privilege is held by the attorney, not the
client. (Lasky, supra, 172 Cal.App.3d at p. 278 [trustee’s attorney
“is the sole holder of the privilege and may effectively assert it
even as against a client”]; Lohman v. Superior Court (1978)
81 Cal.App.3d 90, 101 [plaintiff could not invoke work product
privilege to suppress answers given by plaintiff’s former attorney
in deposition because attorney is holder of the privilege];
cf. Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 61-62
(Fellows) [work product privilege belongs to attorney, but may be
waived by client in possession of the work product], disapproved
on another ground in Coito, supra, 54 Cal.4th at p. 499.)
Further, the privilege “survives the termination of the
litigation or matter in which the work product is prepared and
may be claimed in subsequent litigation—whether related or
unrelated to the prior matter—to preclude disclosure of the
attorney’s work product.” (Fellows, supra, 108 Cal.App.3d at
18
p. 62.) “The continuance of the attorney’s work-product privilege
for subsequent litigation applies both to work product which falls
within the conditional portion of the privilege and to work
product which falls within the absolute portion of the privilege.”
(Id. at pp. 62-63, fn. omitted; accord, Lasky, supra,
172 Cal.App.3d at p. 273 [“The privilege survives the termination
of litigation during which it was developed.”].) As the Fellows
court explained, continuation of the privilege furthers the policy
behind creation of the privilege “‘(1) to encourage the attorney to
make a thorough preparation for trial, including analysis of
unfavorable aspects of his case, as well as the favorable aspects,
and (2) to prevent one attorney from taking undue advantage of
another’s industry and efforts.’” (Fellows, at p. 63.)
In Coito, supra, 54 Cal.4th 480, the Supreme Court set
forth the proper process for a trial court to analyze an assertion of
the work product privilege. The question before the court in
Coito was the level of work product protection afforded to
recorded witness interviews conducted by investigators and lists
of witnesses from whom written or recorded statements had been
taken (requested in Judicial Council Form Interrogatory
No. 12.3). (Id. at pp. 494-499, 501-502.) With respect to witness
interviews, the court observed it was likely but not certain the
interviews would reveal attorney work product, for example, if
the “witness’s statements are ‘inextricably intertwined’ with
explicit comments or notes by the attorney stating his or her
impressions of the witness,” or if the attorney’s line of inquiry
revealed the attorney’s theory of the case or evaluation of issues.
(Id. at p. 495.) Because witness statements would not always
reveal the attorney’s thought process, “[a]n attorney resisting
discovery of a witness statement based on absolute privilege must
19
make a preliminary or foundational showing that disclosure
would reveal his or her ‘impressions, conclusions, opinions, or
legal research or theories.’ (§ 2018.030, subd. (a).) Upon an
adequate showing, the trial court should then determine, by
making an in camera inspection if necessary, whether absolute
work product protection applies to some or all of the material.”
(Coito, at pp. 495-496.)
The Coito court held that even if witness statements are
not entitled to absolute protection, they are at least entitled to
qualified work product protection because their disclosure would
undermine the statutory policy of preventing attorneys from
taking undue advantage of their adversary’s efforts and
discourage attorneys from preparing their cases thoroughly and
investigating favorable and unfavorable aspects of their case.
(Coito, supra, 54 Cal.4th at p. 496.) Thus, because the qualified
privilege applies, the “party seeking disclosure has the burden of
establishing that denial of disclosure will unfairly prejudice the
party in preparing its claim or defense or will result in injustice.”
(Id. at p. 499.)
As to lists identifying witnesses who had given statements,
the Supreme Court reasoned the lists could in some instances
reveal an attorney’s impressions of the case, for example, the
attorney’s selection of certain witnesses from a larger pool, but it
would not “always or even often be the case that a witness list . . .
reflects counsel’s premeditated and carefully considered
selectivity.” (Coito, supra, 54 Cal.4th at p. 502.) Thus, the party
objecting to disclosure “may be entitled to protection if it can
make a preliminary or foundational showing that answering the
interrogatory would reveal the attorney’s tactics, impressions, or
evaluation of the case, or would result in opposing counsel taking
20
undue advantage of the attorney’s industry or efforts.” (Ibid.)
“Upon such a showing, the trial court should then determine . . .
whether absolute or qualified work product protection applies to
the material in dispute.” (Ibid.; see McVeigh v. Recology San
Francisco (2013) 213 Cal.App.4th 443, 474 [vacating trial court’s
denial of motion to compel names of witnesses who had been
interviewed, noting motion could be renewed in light of Coito].)
We are not aware of any controlling authority, nor have the
parties cited to any, specifically addressing whether the identity
of a nontestifying expert is protected as work product. Curtis
relies on an unpublished federal district court decision in which
the court rejected a provision of a proposed protective order that
would have required identification of nontestifying experts who
would receive confidential information under the protective order,
holding that “a non-testifying expert’s identity is protected from
discovery absent a showing of exceptional circumstances.”
(LivePerson, Inc. v. 24/7 Customer, Inc. (S.D.N.Y. July 30, 2015,
No. 14 civ. 1559 RWS) 2015 U.S.Dist. Lexis 99782, at *5
(LivePerson); accord, Ager v. Jane C. Stormont Hospital &
Training School for Nurses (10th Cir. 1980) 622 F.2d 496, 503
(Ager) [“[W]e hold that the identity, and other collateral
information concerning an expert who is retained or specially
employed in anticipation of litigation, but not expected to be
called as a witness at trial, is not discoverable except as [provided
in federal rule requiring physical or mental exam] . . . or upon a
showing of exceptional circumstances under which it is
impracticable for the party seeking discovery to obtain facts or
opinions on the same subject by other means.” (Fn. omitted.)];
but see Del. Display Group LLC v. Lenovo Group Ltd.
(D.Del. Feb. 23, 2016, Civ. A. No. 13-2109-RGA) 2016 U.S. Dist.
21
Lexis 21461, at *19-20, fn. 10 (Del. Display Group) [“District
courts in the Third Circuit, however, have . . . held that the
‘disclosure of [an] expert’s identity . . . is not subject to a
heightened showing of “exceptional circumstances.”’”].)
We are not bound by federal cases (People v. Troyer (2011)
51 Cal.4th 599, 610), and moreover, LivePerson and Ager lack
persuasive value because the holdings were based on Federal
Rules of Civil Procedure, rule 26(b)(4)(D) (28 U.S.C.),10 not
California’s statutory work product provision. Rule 26(b)(4)(D)
expressly holds the facts or opinions of a retained, nontestifying
expert are not discoverable absent exceptional circumstances,
and the courts in Ager and LivePerson considered the policy
reasons for extending that protection to the identity of the
nontestifying experts. (See Ager, supra, 622 F.2d at p. 503
[“There are several policy considerations supporting our view.”].)
And, as the Del. Display Group and LivePerson courts observed,
there is a split in federal authority as to the standard under
federal law for disclosure of the identity of expert witnesses.
(Del. Display Group, supra, at *19-20, fn. 10; LivePerson, supra,
at *4 [“Some courts, though not all, have read this discovery
10 Federal Rules of Civil Procedure, rule 26(b)(4)(D)
(28 U.S.C.) provides, “Ordinarily, a party may not, by
interrogatories or deposition, discover facts known or opinions
held by an expert who has been retained or specially employed by
another party in anticipation of litigation or to prepare for trial
and who is not expected to be called as a witness at trial.”
22
limitation as applying not only to facts and opinions, but also to
the identity of non-testifying experts.”].)11
Curtis’s citation to California cases that hold the opinions
and reports of nontestifying experts are entitled to work-product
protection is likewise not persuasive because none of the cases
addresses whether the identity of a nontestifying expert is
privileged. (See Scotsman Mfg. Co v. Superior Court (1966)
242 Cal.App.2d 527, 530 [trial court order compelling disclosure
of consultant report was an abuse of discretion where it was
unsettled whether consultant would testify]; Swartzman v.
Superior Court (1964) 231 Cal.App.2d 195, 202-203
[“[c]onsultation between expert and counsel may appropriately be
given broad immunity from discovery” until the expert is called
as a witness at trial and shown to be qualified to present
competent expert testimony].)
The cases cited by CELA for the proposition the identity of
a percipient witness is generally not shielded by the work product
privilege similarly offer no guidance, and they all predate the
Supreme Court’s decision in Coito. (See Huffy Corp. v. Superior
Court (2003) 112 Cal.App.4th 97, 109 [identities of witnesses to
possible violations of pollution laws were not subject to attorney-
client or work product privileges]; Aerojet-General Corp. v.
11 Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325,
1341-1343, relied on by Curtis, is inapposite. The Supreme Court
in Times Mirror addressed whether the Governor’s appointment
calendars were exempt from disclosure under the Public Records
Act (Gov. Code, § 6250 et seq.). The attorney work product
privilege was not at issue, and the disclosure of the individuals
with whom the Governor met could have revealed the Governor’s
thought process, whereas Curtis has already disclosed Doe 1 is a
plaintiffs’-side attorney he consulted to hone his trial strategy.
23
Transport Indemnity Insurance (1993) 18 Cal.App.4th 996, 1004
[name of independent insurance adjuster who had investigated a
prior industrial accident at defendant’s facility was not protected
work product]; but see City of Long Beach v. Superior Court
(1976) 64 Cal.App.3d 65, 73 [compelled disclosure of the identity
of witnesses opposing counsel intended to call at trial violated the
qualified work product privilege because it would reflect the
attorney’s evaluation of the strengths and weaknesses of his
case].)
We conclude the reasoning in Coito, supra, 54 Cal.4th at
pages 501 to 502 with respect to identification of witnesses who
had given statements to an attorney is most analogous to an
attorney’s identification of a nontestifying expert—that it would
not “always or even often be the case that [the disclosure] . . .
reflects counsel’s premeditated and carefully considered
selectivity.” Thus, the objecting party may be entitled to
protection under the work product privilege if it can make a
preliminary or foundational showing that identifying the
nontestifying expert “would reveal the attorney’s tactics,
impressions, or evaluation of the case, or would result in opposing
counsel taking undue advantage of the attorney’s industry or
efforts.” (Id. at p. 502.)12 If the disclosure would reveal the
12 The Supreme Court in Coito posited a scenario in which an
attorney investigating a bus accident took statements from only
10 of 50 surviving passengers as an example where the disclosure
of a list of witnesses who gave statements could reveal the
attorney’s impressions or evaluation of the case. (Coito, supra,
54 Cal.4th at p. 501.) As the court explained, “[D]isclosure of the
list may well indicate the attorney's evaluation or conclusion as
to which witnesses were in the best position to see the cause of
24
attorney’s tactics, impressions, or evaluation of the case, the
information would be entitled to absolute protection; if the
disclosure would allow opposing counsel to take undue advantage
of the attorney’s efforts or impair the privacy necessary for the
attorney to investigate not only the favorable but unfavorable
aspects of the case, a qualified protection would apply.13
(§ 2018.030, subds. (a) & (b).)
the accident.” (Ibid.) In addition, the list may be entitled to a
qualified privilege because it may reflect the attorney’s industry
and efforts in locating and selecting the witnesses to interview.
(Ibid.) An attorney’s disclosure of the identity of his or her
nontestifying expert may similarly be entitled to protection
where, for example, an attorney in a medical malpractice case
consults with an anesthesiologist instead of a cardiologist, which
might reveal the attorney’s focus on a specific medical condition.
13 Because Coito involved a request for disclosure of
writings—recorded statements and a list of witnesses—the
Supreme Court did not reach the question whether the absolute
privilege under section 2018.030, subdivision (a), which by its
own terms applies only to a “writing,” also applies to unwritten
work product, such as the name of a witness. The Court of
Appeal in Fireman’s Fund Ins. Co. v. Superior Court (2011)
196 Cal.App.4th 1263, concluded in light of the legislative
history, the decisional law interpreting Federal Rules of Civil
Procedure, rule 26(b)(3), and the objective to interpret statutes to
avoid absurd results that “unwritten opinion work product is
entitled to the protection of the absolute work product privilege
in California.” (Fireman’s Fund, at pp. 1279, 1281.) The court
explained, “[T]here is every indication in the legislative history
that the California law was intended to absolutely protect opinion
work product in every form, and no indication that it was
intended to provide lesser protection for unwritten work product.”
25
D. The Trial Court Did Not Abuse Its Discretion in Compelling
Curtis To Identify Doe 1
Curtis contends the identity of Doe 1 is entitled to absolute
work product protection under section 2018.030, subdivision (a),
because disclosure would convey tactical information concerning
Curtis’s defense of the Saccio action and other employment law
matters. CELA contends, and the trial court found, that Doe 1’s
identity is not protected as absolute or qualified work product
because Doe 1 is a percipient fact witness in this action. As the
party asserting the privilege, Curtis bears the burden to make a
preliminary or foundational showing that the identification of
Doe 1 implicates his absolute or qualified attorney work product
privilege. (Coito, supra, 54 Cal.4th at p. 502.) Curtis has failed
to show the identification of Doe 1 is entitled to absolute work
product protection, but he has made a sufficient foundational
showing that the information may be subject to qualified
protection.
With respect to the absolute privilege, the identity of Doe 1
does not reflect Curtis’s “impressions, conclusions, opinions, or
legal research or theories.” (§ 2018.030, subd. (a).) Curtis has
already disclosed that Doe 1 is a plaintiffs’-side employment
lawyer and that Curtis’s strategy in defending employers is to
consult a practitioner with experience as a lawyer for plaintiffs.
Curtis has not offered any evidence the identification of this
(Id. at p. 1279.) We question whether the Fireman’s Fund court
properly construed section 2018.030, subdivision (a), given the
unambiguous language in the statute affording an absolute
privilege to a “writing” and a qualified privilege to “[a]ll other
work product.” (Fireman’s Fund, at p. 1276.) But we do not
reach the issue because we conclude the absolute protection does
not apply here.
26
particular plaintiffs’-side employment lawyer reveals anything
about Curtis’s representation of Romasanta, his strategy in
defending the Saccio action, or his tactics in future actions.
(Cf. Coito, supra, 54 Cal.4th at p. 502 [selection of individuals
from whom to take statements among many witnesses could
potentially reveal trial strategy].) Certainly, as Curtis argues,
there could be repercussions from the disclosure—for example,
adversaries could retain Doe 1 to create a conflict so Curtis could
no longer use Doe 1, and then attempt to discern from Doe 1 the
strategies Curtis might deploy—but these arguments do not
transmute Doe 1’s identity into core work product entitled to
absolute protection.
However, these concerns, as well as Curtis’s fear that
public disclosure would chill Doe 1 and discourage other
plaintiffs’-side lawyers from consulting with Curtis, may affect
Curtis’s right to thoroughly prepare his case and investigate
favorable and unfavorable aspects of the case, as well as to
prevent “opposing counsel [from] taking undue advantage of [his]
industry or efforts,” thus implicating the qualified work product
privilege. (Coito, supra, 54 Cal.4th at p. 486.) Accordingly,
Curtis has made a foundational showing that identification of
Doe 1 may be entitled to qualified work product protection under
section 2018.030, subdivision (b). (Coito, at p. 502.)14
14 Because the trial court did not analyze whether Curtis met
his burden under the Coito standard to make a foundational
showing that identification of Doe 1 was entitled to qualified
work product protection, we do not decide that issue. Instead, we
conclude that even if Curtis made a sufficient foundational
showing, CELA met its burden to show it was still entitled to
disclosure.
27
The trial court’s finding that Doe 1’s identity was not
entitled to any work product protection (absolute or qualified)
because Doe 1 is a fact witness in this action, regardless of his
consulting role in the Saccio action, was erroneous. Although
Doe 1 is a percipient witness in this action, any work product
protection Curtis holds as to his use of Doe 1 in the Saccio action
survives the termination of that action.15 (Fellows, supra,
108 Cal.App.3d at pp. 61-62.) Doe 1’s role in this action is
relevant to a balancing of interests, but the fact Doe 1 is a fact
witness in this action does not categorically negate any qualified
work product privilege held by Curtis.16
15 CELA contends Curtis has not shown Doe 1 was a
consultant in the Saccio case because there was no written
retention agreement and no record of payments. But CELA did
not make this argument in its motion to compel, and it is
forfeited on appeal. (Johnson v. Greenelsh (2009) 47 Cal.4th 598,
603 [“‘issues not raised in the trial court cannot be raised for the
first time on appeal’”]; accord, Hanna v. Mercedes-Benz USA,
LLC (2019) 36 Cal.App.5th 493, 513.)
16 CELA cites Tucker Ellis LLP v. Superior Court (Nelson)
(2017) 12 Cal.App.5th 1233 to support its argument FBBC, not
Curtis, holds the attorney-client privilege and Curtis does not
have standing to assert the privilege. (Id. at pp. 1244-1245.)
However, Tucker Ellis held a law firm did not need to obtain
authorization from the former law firm attorney who created the
work product for the firm to waive the privilege. (Id. at p. 1248.)
Here, Curtis is currently a named partner at his firm, and
another FBBC partner defended his deposition and instructed
him not to answer CELA’s questions concerning the identity of
Doe 1. Unlike Tucker Ellis, there is no question of waiver, no
28
As discussed, for CELA to compel disclosure of Doe 1’s
identity notwithstanding the qualified work product privilege,
CELA carries “the burden of establishing that denial of disclosure
will unfairly prejudice [it] in preparing its claim or defense or will
result in an injustice.” (Coito, supra, 54 Cal.4th at p. 499; see
§ 2018.030, subd. (b).) CELA has met this burden. In support of
its motion to compel, CELA’s attorney declared that CELA had
used information technology consultants and conducted an
internal investigation to identify Doe 1, but it was not able to
ascertain the identity of Doe 1. The “unavailability or
inaccessibility of [a] witness[ ]” can provide a sufficient showing
of prejudice. (Coito, at p. 497.) The prejudice to CELA is even
greater in this case because CELA cannot prosecute the action
until Doe 1 is identified. Thus, upholding Curtis’s work product
privilege would likely entirely foreclose CELA’s action for breach
of its confidential information.17
Curtis contends his interest in preserving the work
product protection of Doe 1’s identity outweighs CELA’s interests
separation between partner and firm, and no basis to find Curtis
lacks standing to assert the privilege on behalf of the firm.
17 Curtis suggests CELA could serve business subpoenas on
all of its 1,300 members to find the offending member or ask the
offender to step forward. But as CELA argues in its respondent’s
brief, not only would the cost of serving and pursuing 1,300
subpoenas be astronomical, but Doe 1 could ignore the subpoena
and potentially avoid detection among the numerous recipients of
the Secrest posting. And it is highly unlikely Doe 1 would
voluntarily step forward to subject himself or herself to litigation
and potential liability for damages.
29
in compelling disclosure.18 (See 2,022 Ranch v. Superior Court
(2003) 113 Cal.App.4th 1377, 1390 [“The determination of good
cause contemplates a balancing of the need for disclosure against
the purpose served by the work product doctrine.”], disapproved
on another ground in Costco Wholesale Corp. v. Superior Court,
supra, 47 Cal.4th at p. 739.) It does not. As discussed, Curtis
has already revealed he uses a plaintiffs’-side attorney to consult
in representing employers in employment law cases. The harm
to Curtis from disclosure of the name of the specific attorney he
used in the Saccio case (Doe 1), even if Curtis intends to use
Doe 1 as a nontestifying expert in future cases, is unlikely to
impair his relationship with Doe 1 such that Curtis cannot
continue to use Doe 1 as a consultant. Further, the
circumstances of this case—in which Doe 1 is a defendant or key
witness who can only be identified by the attorney who consulted
with him in another matter—are so unusual that an order
compelling disclosure is unlikely to chill Doe 1’s interest in
continuing to consult with Curtis or to discourage otherwise
willing plaintiffs’-side lawyers from serving as a consultant for
Curtis. And if disclosure damages the relationship between
18 Curtis cites National Steel Prods. Co. v. Superior Court
(1985) 164 Cal.App.3d 476 for the proposition that an assertion
by the party seeking discovery of work product that it cannot
obtain the information by other means is insufficient to overcome
the qualified work product privilege. But in National Steel the
court only held that the need for a report prepared by the
defendant as a nontestifying expert in a prior action was
sufficiently compelling to require the trial court to conduct an in
camera review of the report, weighing the impeachment value of
the report against the conditional work product protection. (Id.
at p. 490.)
30
Curtis and Doe 1, the damage would have resulted from the
consequences of Doe 1’s alleged misappropriation of CELA’s
confidential information, not from Doe 1’s fear of being ostracized
for having consulted for a defense lawyer. In addition, Curtis has
not demonstrated that if he can no longer consult with Doe 1, he
would not be able to engage another plaintiffs’-side employment
lawyer. Further, Curtis’s concern that opposing counsel will
retain Doe 1 to prevent Curtis from using him or her is
speculative. Doe 1 is free to decline representation of an opposing
party. Under these circumstances, the court did not abuse its
discretion in finding CELA had met its burden to demonstrate
prejudice under section 2018.030, subdivision (b).
DISPOSITION
The appeal is dismissed. We deny the petition for writ of
mandate seeking to reverse the order compelling disclosure.
CELA is to recover its costs in this proceeding.
FEUER, J.
We concur:
PERLUSS, P. J.
MCCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
31