McGinty v. Superior Court

• Decision Date: 27 June 1994
• Docket Number: No. H011869,H011869
• Citation: 31 Cal.Rptr.2d 292,26 Cal.App.4th 204
• Court: California Court of Appeals Court of Appeals
• Parties: Alma McGINTY, as Executrix, etc., et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent; AVCO CORPORATION, Real Party in Interest.

Page 292

31 Cal.Rptr.2d 292

26 Cal.App.4th 204

Alma McGINTY, as Executrix, etc., et al., Petitioners, v. The SUPERIOR COURT of Santa Clara County, Respondent AVCO CORPORATION, Real Party in Interest.

No. H011869.

Court of Appeal, Sixth District, California.

June 27, 1994.

Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Michael B. Moore, Dennis Kruszynski, San Francisco, for petitioners.

No appearance for respondent.

Irwin & Reily and David H. Reily, Janine K. Jeffery, Los Angeles, for real party in interest.

PREMO, Acting Presiding Justice.

Plaintiffs ¹ file this petition for extraordinary relief from an order precluding them from using their expert witness and from presenting certain evidence. We find merit in the petition and will issue a peremptory writ to vacate the challenged order.

FACTS

In this wrongful death action, petitioners assert a product liability cause of action against real party in interest, Avco Corporation (hereafter, Avco). Avco had designed and manufactured the engine of the private aircraft which crashed, killing all the occupants therein. Petitioners are the heirs of the deceased occupants.

Petitioners' expert witness, Craig Hood, is of the opinion that the engine failed because an internal bolt had malfunctioned due to stress fatigue. The bolt was unduly stressed because the connecting mechanism of which it was a part did not have a locking nut which would have prevented loosening of the bolt and consequent unacceptable tension load on it. The history of the engine design shows that at one time the design provided for a fatigue-rated bolt and a crimp nut which prevented the bolt from loosening, but the design was subsequently changed to provide for a fatigue-rated but nonlocking nut.

Hood was the expert witness for the petitioners in a similar Illinois action against Avco which also involved the crash of a different aircraft with the same engine. (Kaige v. Avco Corporation (Case No. 84-L-1795) hereafter, Kaige.) The Kaige complaint alleged the same design defect described above, and also alleged that as a result of the defectively designed and manufactured connecting rod bolt and nut, the nut came off and allowed the bolt to come loose and interfere with other operating engine parts. In addition, the Kaige complaint alleged that an earlier design had used a nut-locking mechanism On September 16, 1991, the Kaige court issued a protective order to protect Avco's trade secrets. The order provided that Avco should mark all documents containing trade secrets with the legend "Privileged and Confidential," and that such documents should be used only for prosecution, defense, or settlement of the Kaige action, and could only be disclosed to attorneys for the parties, their employees, expert or consulting witnesses, and court personnel. Also, the documents were to be returned to Avco after the litigation was concluded.

but the design was later modified to save money for Avco.

The Kaige action was settled in March 1993, at which time counsel for Avco requested return of all confidential documents pursuant to the protective order.

Meanwhile, the instant action, which was filed in November 1988, was proceeding in the Santa Clara County Superior Court. The declaration of petitioners' counsel, Michael Moore, avers that after experiencing substantial difficulty locating an appropriate expert witness, he contacted Hood because Hood had previously performed consultation work for Moore in a case involving failure of nuts and bolts in a truck.

In December 1991, Hood informed Moore that he was working on the Kaige action, which was almost identical to the instant action. Hood said that with the permission of the Kaige plaintiffs' attorney, he would send pertinent information to Moore. Pursuant to such arrangement, Hood sent to Moore a number of pleadings and discovery documents from the Kaige action. These included materials which were subject to the Kaige protective order; namely, a six-volume deposition of Avco's expert, Allen Light; Hood's deposition with attached exhibits; and six Avco drawings and service instructions marked "Privileged and Confidential" involving the bolt and nut in question.

Because of the specificity of petitioners' responses to Avco's discovery requests concerning related pending cases, Avco's counsel deduced that petitioners' counsel must have seen privileged information from the Kaige case. Avco's counsel demanded inspection of that information in a letter dated July 8, 1993, which he sent to Moore. Moore claims that this letter was the first notice to him or any other petitioners' counsel that there was a protective order in the Kaige litigation.

Contacted by Moore, Hood denied having disclosed any protective information deliberately.

Avco filed motions for sanctions in both the Illinois court (where the Kaige action had already been settled) and the Santa Clara County Superior Court.

The sanctions sought in the Kaige action included return of all privileged information to Avco; enjoining all recipients of such information from using it; enjoining Hood and others from testifying against Avco in any other litigation; and attorney fees and costs. However, by the time the Illinois court ruled on the motion, the Santa Clara court had already ruled here, and the Kaige action had already been settled. Apparently perceiving that the motion in the Kaige action had no real significance, the Illinois court, in its order of October 25, 1993, limited its ruling to ordering return of the privileged documents.

The Santa Clara County Superior Court ruled that the protected material must be returned to Avco, and that Hood is disqualified from acting as an expert in the case. The court denied Avco's motion to disqualify counsel.

CONTENTIONS

Petitioners contend that the inevitable result of the sanction order, in addition to its explicit effect, is to prevent any meaningful further discovery by them because they were compelled to return the protected materials and will probably not be allowed to discover them later, as a necessarily implied part of the sanction.

Petitioners argue that they are entitled to these materials in any event (possibly subject to a protective order similar to that used in Kaige) and that they had already requested for them, in a general way, long before Hood sent the materials to Moore. Petitioners point out that in February 1992, they had demanded inspection of documents relating to the past and current designs of the rod Petitioners also assert that Avco cannot show that petitioners have obtained unfair litigation advantage from coming into possession of the privileged information because petitioners had asked for, and were entitled to, the information about the design of the defective part; and they had already known Hood and had hired him long before the disclosure transpired. Therefore, petitioners argue, sanctions are not warranted; and certainly not the draconian sanctions of depriving them of (1) the only expert witness who will help their case, and (2) the relevant information as to the history of the allegedly defective engine part which caused the crash.

component of the engine, including the original and all subsequent versions of specifications, designs, and drawings. They had also asked for the depositions of current and past officers or employees of Avco in any similar pending lawsuits. Petitioners claim that the deposition of Light and the information showing the design changes fall into this general category. Avco did not respond to this request, and petitioners filed a motion to compel responses on March 29, 1993. The court granted petitioners' motion and awarded sanctions.

Petitioners also point out the considerable evidence that there was no wrongdoing on Moore's part and that he is innocent and therefore not subject to sanctions. This evidence includes the fact that the gummed label mentioning the protective order which should have been attached to the six volumes of the Light deposition was not there; that no one ever told Moore about the protective order in Kaige; and that these materials were part of a voluminous supply of data, such that one would not necessarily be on notice of the privileged nature of some of that data without warning and direction. Petitioners point out that the privileged Kaige documents consist of one six-volume deposition and six drawings and service instructions out of thousands of pages of drawings and service instructions disclosed in the case which were not privileged; and although some of the privileged documents did have the word "confidential" on them, so did numerous other documents disclosed by Avco in the case as to which no protective order had ever been sought.

Another point petitioners stress is that the purpose of the privilege was to protect Avco's trade secrets, not to protect its litigating strategy. Avco's request for the protective order in the Illinois case argued only the purpose to protect trade secrets from competitors; there was no other basis for the request. Petitioners argue that the disclosure of this information to petitioners in another case did not violate the trade secret rationale for the court-imposed privilege. Avco's trade secrets are still safe from competitors and petitioners' counsel has offered to subject himself to the same protective order as in Kaige restricting disclosure to parties to the litigation. ²

Petitioners further contend they will suffer irreparable damage if the challenged sanction stands. They argue that the engineering drawings and service instructions in issue involve successive revisions to the design of the connecting rod bolt which failed in the aircraft involved, and therefore go to the heart of petitioners' design defect and negligence causes of action. Petitioners say it will be impossible to prove their case without them. One element of petitioners' product liability action is to show the existence...