allowing plaintiff to discover an expert report even though the defendant who employed the expert subsequently withdrew him as a witness, because that withdrawal was based on a promise of indemnification from the co-defendant regarding whom the expert report was unfavorable
How later courts described this case
- allowing plaintiff to discover an expert report even though the defendant who employed the expert subsequently withdrew him as a witness, because that withdrawal was based on a promise of indemnification from the co-defendant regarding whom the expert report was unfavorable
- compelling disclosure of expert report where one co-defendant paid another co-defendant to withdraw authoring expert as a witness in effort to preclude discovery of the report
- in determining what inferences to draw from party’s wilful suppression of evidence, code of evidence permits trier of fact to consider, among other things, party’s failure to explain or to deny evidence against him or party’s wilful suppression of evidence
Written by the judges who cited it.
The opinion
RICHARDSON, J.
I respectfully dissent. As the majority opinion explains, it is well established that work product protection must be afforded to an experts’ reports and communications to an attorney employing him in preparation for trial at least until the expert has been designated as an actual trial witness. (See Mize v. Atchison, T. & S. F. Ry. Co. (1975) 46 Cal.App.3d 436, 449 [ 120 Cal.Rptr. 787 ]; Petterson v. Superior Court (1974) 39 Cal.App.3d 267, 271-272 [ 114 Cal.Rptr. 20 ]; Sanders v. Superior Court (1973) 34 Cal.App.3d 270, 278-279 [ 109 Cal.Rptr. 770 ]; Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963 [ 93 Cal.Rptr. 719 ]; Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 9-10 [ 82 Cal.Rptr. 288 ]; Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10-11 [ 66 Cal.Rptr. 280 ]; Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 529-532 [ 51 Cal.Rptr. 511 ]; Swartzman v. Superior Court (1964) 231 Cal.App.2d 195, 202-203 [ 41 Cal.Rptr. 721 ].)
Under the foregoing rule, the Kurt report would have been protected from discovery by reason of Big Four’s announcement, prior to Kurt’s scheduled deposition, that Kurt would not be called to testify. The majority holds, however, that Big Four forfeited its work product protection because it agreed with Firestone to withdraw Kurt as a trial witness in return for Firestone’s promise of indemnification. The majority questions the legality of an agreement whereby one party “sells” his silence to another regarding potentially relevant evidence.
It does appear to be the general rule that “A bargain that has for its object or consideration the suppression of evidence ... is illegal.” (Rest., Contracts, § 554; see 6A Corbin, Contracts, § 1430, at p. 380; see also Tappan v. Albany Brewing Co. (1889) 80 Cal. 570 [ 22 P. 257 ].) It is not as clear, however, that actual “suppression” of evidence is involved here. The work product rules, by very definition, in effect sanction a “suppression” of an expert’s report unless and until the decision is made to call the expert as a trial witness. Furthermore, assuming that the alleged agreement between Big Four and Firestone was illegal and unenforceable as between those parties, and that appropriate sanction might have been *840 imposed, no compelling reason exists for our holding that the making of such an agreement resulted in a waiver by Big Four of its work product protection vis-a-vis the plaintiff. Certainly, no such waiver was intended by Big Four who, having engaged Kurt, should retain the right to decide for itself whether or not to call him as a witness. The record discloses that at the present time he will not be called. Accordingly, under the authorities cited above, the Kurt report remains conditionally protected from disclosure to plaintiff.
Under section 2016, subdivision (b), the Kurt report would be discoverable upon a showing of prejudice or injustice. Yet the trial court herein declined to enter such a finding of prejudice or injustice, possibly reflecting the fact that plaintiff had hired his own experts to investigate the accident. The underlying evidence, upon which Kurt’s expert conclusions were reached, presumably is fully accessible to plaintiff’s experts; at least it is not alleged that this evidence is not so available. If, in fact, Firestone’s tire was defective and caused or contributed to the accident, no reason whatever appears in the record why plaintiff’s experts cannot reach the same conclusion as a result of their independent efforts.
Subdivision (g) of section 2016 announces a policy of this state to prevent an attorney from taking undue advantage of his adversaiy’s efforts, as well as to protect his adversary’s privacy which, it must always be borne in mind, is for the overriding protection of the lawyer’s client. “Under such a policy a party cannot substitute the wits of his adversaiy’s expert for wits of his own in analyzing the case. [Citation.]” (Swartzman v. Superior Court, supra, 231 Cal.App.2d 195, 203 .)
I would deny the writ.
Clark, J., concurred.
The petition of real parties in interest Firestone and Big Four for a rehearing was denied September 14, 1978. Clark, J., was of the opinion that the petition should be granted.