BP Alaska Exploration, Inc. v. Superior Court

BEST, J., Concurring and Dissenting.

I am unable to agree with certain of the conclusions reached by the majority concerning the attorney’s work product rule codified in the last paragraph of subdivision (b) of former Code of Civil Procedure section 2016 (now Code Civ. Proc., § 2018). (See Stats. 1987, ch. 86, § 3.5, eff. July 2, 1987, operative July 1, 1987.) The majority holds that an attorney’s letter or memorandum opinion which contains the attorney’s impressions, conclusions, opinions, or legal research retains its absolute work product status after the letter or memorandum is delivered to the client in confidence. In my view this holding is historically unfounded, legally unsound and would judicially repeal the exceptions to the attorney-client privilege insofar as written confidential communications from the attorney to the client are concerned. I will attempt to demonstrate.

The attorney’s work product rule has as its historical base the opinion of the United States Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495 [ 91 L.Ed. 451 , 67 S.Ct. 385 ]. There the plaintiff served interrogatories seeking production of both oral and written statements obtained by defendant’s counsel from witnesses. Although recognizing that the material was not protected by the attorney-client privilege, the court noted: “Proper preparation of a client’s case demands that he [the attorney] assemble information, sift what he considers to be relevant from the irrelevant facts, *1272 prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly though roughly termed . . . the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” (Id. at p. 511 [ 91 L.Ed. at p. 462 ].)

In Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355 [ 15 Cal.Rptr. 90 , 364 P.2d 266 ], the California Supreme Court rejected the contention that an attorney’s work product was absolutely immune from normal discovery, but recognized that in proper cases a discretionary protective order could issue to deny discovery “when disclosure of the attorney’s efforts, opinions, conclusions or theories would be against public policy ... or would be eminently unfair or unjust, or would impose an undue burden.” (Id. at p. 401; see Trade Center Properties, Inc. v. Superior Court (1960) 185 Cal.App.2d 409, 411 [ 8 Cal.Rptr. 345 ]; see also Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177-178 [ 23 Cal.Rptr. 368 , 373 P.2d 432 , 95 A.L.R.2d 1073 ]; San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 204-205 [ 23 Cal.Rptr. 384 , 373 P.2d 448 , 97 A.L.R.2d 761 ]; Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 192-193 [ 23 Cal.Rptr. 375 , 373 P.2d 439 ].)

The attorney’s work product rule received statutory recognition in California by the 1963 amendment to Code of Civil Procedure section 2016 which added the following paragraph to subdivision (b): “The work product of any attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” (Italics added.)

“Work product” is not otherwise defined in the statute.

At the same time subdivision (g) (later amended to subdivision (h)) was added to Code of Civil Procedure section 2016, as follows: “It is the policy of this state (i) to preserve the rights of attorneys to prepare cases for trial *1273 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 such cases and (ii) to prevent an attorney from taking undue advantage of his adversary’s industry or efforts.”

In Fellows v. Superior Court (1980) 108 Cal.App.3d 55 [ 166 Cal.Rptr. 274 ], plaintiffs filed a complaint against Allstate Insurance Company and several individuals for damages based on an alleged bad faith refusal of defendants to settle plaintiffs’ uninsured motorist claims. Plaintiffs had been represented by Donald Kottler during the pendency of the uninsured motorist claims. Attorney Kottler had delivered his legal file to plaintiffs for use in the present litigation. Defendants sought production of some 64 documents contained in the Kottler legal file and which had been identified and described in answers to interrogatories. Plaintiffs contended that most of these documents fell within the absolute portion of the attorney’s work product privilege. The appellate court, in an opinion authored by Justice Jefferson, held, in my view correctly, that the trial court erred in holding the attorney’s work product privilege automatically terminated at the conclusion of the uninsured motorist claims matter and could not be asserted in the latter action between plaintiffs and defendants. In discussing defendants’ assertion that plaintiffs had no standing to assert the attorney’s work product privilege for documents belonging to the attorney but in plaintiffs’ possession, the opinion agreed with the holding in Lohman v. Superior Court (1978) 81 Cal.App.3d 90 [ 146 Cal.Rptr. 171 ] that since the attorney is the exclusive holder of the work product privilege, if the attorney wishes to waive the privilege the client cannot object. However, the court in Fellows went on to hold, incorrectly in my view, as follows: “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 Bench-book (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).” (Fellows v. Superior Court, supra, 108 Cal.App.3d at p. 65 .)

It is interesting to note that the only authority cited for the holding that the client had standing to claim the work product privilege on the attorney’s *1274 behalf was Justice Jefferson’s own treatise which, in turn, relied solely upon Mack v. Superior Court (1968) 259 Cal.App.2d 7 [ 66 Cal.Rptr. 280 ]. In Mack , the question of the client’s standing to claim the work product privilege on behalf of the attorney was not directly addressed. There, interrogatories directed to the client sought information about a real estate appraisal obtained by the client’s former attorney and communicated to the client. The client objected, claiming the protection of the attorney’s work product privilege. The issue in Mack was stated on page 10 of the opinion as follows: “Real party in interest first contends that the declaration presented to respondent court by petitioners is hearsay and that since petitioners’ former attorney did not file a declaration in support of their contention there is no competent evidence to show that the work product privilege applies.”

The court first held that the subject declaration, except for one immaterial sentence, was not hearsay. The court then added, without citation of authority, “The work product privilege was created for the protection of the client as well as the attorney and there' is no reason why a party’s declaration, asserting facts apparently within personal knowledge, should not be as effective as a declaration by the attorney.” (Mack v. Superior Court, supra, 259 Cal.App.2d at p. 10 .)

I cannot agree with the statement that “The work product privilege was created for the protection of the client as well as the attorney” and believe the following observation of the court in Lohman v. Superior Court, supra, 81 Cal.App.3d at page 101 to be the correct one: “We do not agree with the reasoning in Mack . Starting with Hickman v. Taylor, supra, 329 U.S. 495 , and ending with Code of Civil Procedure section 2016, subdivision (g), it appears that the whole thrust of the work product privilege was to provide a qualified 5 privilege for the attorney preparing a case for trial and protecting the fruits of his labor from discovery. Certainly, if the Legislature had intended to afford the client some measure of privilege over and beyond that encompassed in the attorney-client privilege, it would have been relatively simple to so state in Code of Civil Procedure section 2016, subdivision (g).

“. . . Finally, in passing, we observe that the decision in Mack may well have been correct in that the questions asked of the client were designed to bring out matters communicated by counsel to client in the course of the attorney-client relationship and protected by the attorney-client privilege.”

The holding in Fellows v. Superior Court, supra, cannot be explained by Justice Jefferson’s emphasizing that the legal file still belonged to Attorney *1275 Kottler, thereby implying that he had merely entrusted the file to his former clients for purposes of the bad faith action. For example, defendants there contended that the filing by plaintiffs of the action against defendants which arose out of plaintiffs’ uninsured motorist dispute with defendants in which plaintiffs were represented by Kottler should be held to constitute a waiver of Kottler’s work product privilege. The opinion states, “Certainly Kottler’s action in surrendering his file to plaintiffs, his former clients, would evidence a consent for plaintiffs to waive the privilege if they so desired. But authorization by the attorney to his client to waive the privilege cannot be construed as a waiver in and of itself.” (Fellows v. Superior Court, supra, 108 Cal.App.3d at p. 65 .) Although the Fellows court would by judicial interpretation make the attorney’s work product privilege comparable to the Evidence Code privileges, under the Evidence Code the lawyer, physician or psychotherapist is required to claim the privilege in the absence of the holder and may not assert the privilege if the holder has consented to disclosure of the confidential communication or has waived the privilege. Once the holder of the privilege—the client or the patient—has consented to disclosure or has waived the privilege, the lawyer, physician, or psychotherapist, as the case may be, cannot claim the privilege for their own protection.

It seems clear that the purpose of the absolute portion of the attorney’s work product rule is to protect from discovery the industry and efforts of the attorney as reflected in his or her work papers in which he or she has reduced to writing his or her “impressions, conclusions, opinions, or legal research or theories” in the preparation of the client’s case. I have been unable to find any indication that it was ever intended to apply to the written product furnished to the client, which, upon delivery to the client, belongs to the client. Nor does logic or necessity require the extension of the attorney’s work product rule to such material. If the written product is a contract, lease or other document not intended to be confidential, no protection from discovery is needed or desired. If the finished product consists of a letter or legal memorandum intended to be confidential, the writing is a confidential communication within the attorney-client privilege (Evid. Code, § 952) and falls under the protective cloak of that privilege. The holding of the majority in this case would bestow upon writings of the latter type a dual character—both attorney’s work product and a confidential communication within the attorney-client privilege. Assuming the majority’s holding that the crime-fraud exception (Evid. Code, § 956) does not apply to the attorney’s work product to be correct, and I believe it is, the exception would never be applicable when the confidential communication from attorney to client was in writing but it would be applicable if the communication was simply oral; and the exception would still apply to both written and oral confidential communications from the client to the attor *1276 ney. If the confidential communication from the attorney to the client was in writing, and under the present holding work product absolutely privileged from discovery, would the remaining Evidence Code exceptions likewise be inapplicable (Evid. Code, § 957—parties claiming through a deceased client; § 958—breach of duty arising out of lawyer-client relationship; § 959—lawyer as attesting witness; § 960—intention of deceased client concerning writing affecting property; § 961—validity of writing affecting property interest; and § 962—joint clients)?

If such writings were possessed of a dual character (both attorney’s work product falling within the absolute portion of the rule and a confidential communication within the attorney-client privilege), logic would dictate that these exceptions would be inapplicable to the attorney’s work product and preclude discovery of the contents even though discovery would be possible if the writings were only confidential communications within the attorney-client privilege.

I submit that such a result would not only be contrary to the Legislature’s intent but border upon the absurd.

Accordingly, I would hold that none of the communications sought to be discovered constituted attorney’s work product within the meaning of former Code of Civil Procedure section 2016, subdivision (b). I concur in the holding of the majority with reference to the crime-fraud exception to the attorney-client privilege (Evid. Code, § 956) and agree that a sufficient prima facie showing was made to support its application. I also concur in the majority holding that the trial court’s order requiring Mr. Gibson-Smith to reappear for deposition and to respond fully to “otherwise appropriate questions” is vague and overbroad.

Absolute as to certain writings, see Code of Civil Procedure section 2016, subdivision (b).”