Dow Chemical Co. v. Superior Court

• Decision Date: 21 November 1969
• Citation: 82 Cal.Rptr. 288,2 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: The DOW CHEMICAL COMPANY (a corporation), Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; The MAY STORES SHOPPING CENTERS, INC., (a corporation), Real-Party in Interest. Civ. 34815.

Page 288

82 Cal.Rptr. 288

2 Cal.App.3d 1

The DOW CHEMICAL COMPANY (a corporation), Petitioner, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent The MAY STORES SHOPPING CENTERS, INC., (a corporation), Real-Party in Interest.

Civ. 34815.

Court of Appeal, Second District, Division 2, California.

Nov. 21, 1969.

LaFollette & Johnson and Rudolf H. Schroeter, Los Angeles, for petitioner.

No appearance for respondent.

Lawler, Felix & Hall and John G. Wigmore, Los Angeles, for real party in interest.

ALARCON, Associate Justice pro tem. ^*

Petition for writ of mandate to compel respondent court to set aside its order of denial and to grant petitioner's motion for a commission to take the deposition of Werner Gumpertz, a nonresident expert witness.

Real party in interest, The May Stores Shopping Centers, Inc. (hereinafter referred to as plaintiff), filed its action in respondent court on January 6, 1967, seeking damages representing out-of-pocket costs of the repair and replacement of the roof of its Topanga Plaza Shopping Center, alleging that in 1966 the roof, constructed in 1963, failed by reason of its defective design, improper construction and defective materials incorporated therein. Petitioner is one of the defendants, it being alleged that one of the roof components was manufactured by it.

Between the time of said alleged failure in December 1966, and the time of the replacement of said roof in about August 1967, representatives of virtually all parties to said action visited said roof, which had a surface area in excess of 275,000 square feet. During this period, as well as during and after the replacement, several sales representatives and other employees of petitioner visited said roof on numerous occasions. In March 1967, one Edward Schreiber, a consultant engineer engaged by petitioner for that purpose, made an inspection and prepared a report containing his findings and conclusions. In response to subpoena served by counsel for plaintiff, a copy of said report was furnished to plaintiff.

On or about February 27, 1967, counsel for plaintiff engaged one Werner Gumpertz, an independent engineer with the firm of Simpson, Gumpertz & Heger, Inc., of Cambridge, Massachusetts, to assist in the preparation for trial, to examine said roof, and to reach conclusions and opinions regarding the causes of its alleged failure. Mr. Gumpertz is a potential witness in the case.

In April 1969, motion was made pursuant to section 2024, Code of Civil Procedure, for a commission to take the deposition of Werner Gumpertz, a resident of and doing business in Cambridge, Massachusetts. Petitioner alleges in the within petition that said notice of motion was accompanied by a declaration of one Rudolf H. Schroeter wherein 'were set forth the above facts pertaining to Werner Gumpertz and the further fact that counsel for the Real Party in Interest had in writing refused to comply with a written request that Werner Gumpertz be made available for deposition examination either in his home state or before a commissioner of Respondent Superior Court.' We have not been furnished with a copy of the motion or of said supporting declaration. It appears from allegations in the within petition, admitted by plaintiff in its answer thereto, that petitioner represented to the trial court that its intention was 'to take the deposition testimony of witness Werner Gumpertz pertaining to his professional qualifications and experience, observations and tests made regarding the Topanga Plaza Shopping Center roof and all opinions and conclusions formed or based thereon' and that it was not the intention of petitioner 'to inquire into any conversations which Werner Gumpertz may have had with representatives of plaintiff or with plaintiff's counsel in a capacity as advisor and counselor on trial preparation or strategy.'

Plaintiff filed a memorandum of points and authorities, accompanied by a declaration of its counsel, in opposition to said motion in which plaintiff raised issues of (1) lack of good cause, (2) attorney-client privilege, ¹ (3) attorney's work product, and (4) oppression. Plaintiff has furnished us with a copy of its counter-declaration, which is set forth in the margin. ²

On June 5, 1969, respondent court denied the motion. The order reads: 'While the Motion of defendant Dow Chemical Company is merely for an order for the issuance of a commission to take the deposition of plaintiff's expert witness Werner Gumpertz before a notary public in Cambridge, Massachusetts, no useful purpose would be served in issuing the commission if the deposition may not properly be taken. This is particularly true in view of the fact that in all probability the numerous parties to the lawsuit would feel the need to be represented at the deposition in Massachusetts if the commission were issued. Thus the Motion has been briefed and argued on the basis of whether good cause for the taking of the deposition has been shown under Grand Lake Drive In, Inc. v. Superior Court, 179 Cal.App.2d 122 (3 Cal.Rptr. 621, 86 A.L.R.2d 129) and whether the information sought to be discovered is attorney work product under Scotsman Manufacturing Co., Inc. v. Superior Court, 242 Cal.App.2d 527 (51 Cal.Rptr. 511), and, if so, whether the required showing has been made under C.C.P. section 2016(b). There is no question that the only knowledge of the facts in issue possessed by the proposed witness came from his examination of the premises pursuant to his employment of plaintiff's counsel in connection with this case. Under all of the facts of the case, including particularly the extensive examination of the roof in question by Dow's representatives, the Court finds that the moving party has not shown good cause for the examination of plaintiff's expert. Further, the information acquired by the expert, at the instigation of plaintiff's counsel, and the opinions based thereon, constitute the work product of plaintiff's counsel, and the Court does not determine that the denial of this discovery will unfairly prejudice defendant Dow or will result in an injustice. Accordingly the Motion is denied.'

The Discovery Act (Code Civ.Proc. secs. 2016--2036) confers upon litigants the right to take depositions without prior court order or approval and, except as to the work product of an attorney, ³ does not require any showing of good cause for the taking of depositions. (Kramer v. Superior Court, 237 Cal.App.2d 753, 755, 47 Cal.Rptr. 317.) Section 2024 ⁴ provides: 'When a party desires to take a deposition out of this State to be used in an action pending in this State, such party shall proceed in the manner provided by Section 2019 of this code if such deposition is to be taken upon oral examination, or in the manner provided by Section 2020 of this code if such deposition is to be taken upon written interrogatories and where necessary or convenient, the court shall issue a commission or letters rogatory as provided in Section 2018(b).'

Thus, the procedure for the taking of a deposition is the same whether it is to be taken within this state (sec. 2019) or out of this state (sec. 2024) (see, Rosen v. Superior Court, 244 Cal.App.2d 586, 591, 53 Cal.Rptr. 347; Beverly Hills Nat. Bank & Trust Co. v. Superior Court, 195 Cal.App.2d 861, 867, 16 Cal.Rptr. 236), with the exception that in the latter situation it may be necessary or convenient to obtain the issuance of a commission. Section 2018, subn. (b), provides that 'A commission or letters rogatory shall be issued by the court in which the action is pending when necessary or convenient on motion and notice and upon such terms and with such directions as are just and appropriate.'

The petitioner in this case, in moving for a commission to take a deposition is, essentially, in the same position as a litigant who seeks an order under section 2034, subn. (a), to compel an answer when a deponent refuses to answer a question upon the taking of his deposition. Since the statute does not require any showing of good cause for the taking of a deposition, normally the mere interposing of an objection or refusal of a deponent to answer a question does not place a burden of showing good cause on the party seeking disclosure. Rather, the statute requires a showing of good cause by a person who seeks to resist or restrict the right to take a deposition by invoking the discretion of the court to issue a protective order. ⁵ (Kramer v. Superior Court, supra, 237 Cal.App.2d 753, 756, 47 Cal.Rptr. 317.)

A distinction, however, has been made between an expert and the usual fact witness in pretrial discovery proceedings. (See, Swartzman v. Superior Court, 231 Cal.App.2d 195, 202--203, 41 Cal.Rptr. 721.) In Grand Lake Drive In, Inc. v. Superior Court, 179 Cal.App.2d 122, page 129, 3 Cal.Rptr. 621, page 627, 86 A.L.R.2d 129, the court, after determining that the information sought was not the work product of counsel, states: 'There is merit, however, in defendant's contention that fairness requires a showing of good cause as a condition to exercise of the power of the court to require pre-trial disclosure of the observations and conclusions of an independent expert engaged by a party as part of his preparation for trial, after occurrence of the event sued upon, to examine and reach conclusions upon an object in issue. This rule avoids the permanency and inflexibility which would follow if the cloak of privilege were extended to cover the testimony of such experts. Its flexibility and terminability commend it.' The court was in complete accord with the view that the discovery provisions are to be liberally construed, but stated that 'under the broadest statement of its purpose, pretrial discovery is subject to some limitations. * * * One such limitation seems reasonably to be drawn along the line distinguishing fact from opinion. The statute contemplates broad discovery of facts directly relating...