Mitchell v. Superior Court
| Decision Date | 20 December 1984 |
| Docket Number | S.F. 24727 |
| Citation | 37 Cal.3d 591,208 Cal.Rptr. 886,691 P.2d 642 |
| Court | California Supreme Court |
| Parties | , 691 P.2d 642 Gary A. MITCHELL et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent; SHELL OIL COMPANY et al., Real Parties in Interest. |
Stemple & Boyajian, Los Angeles, Michael A. Kramer, South Pasadena, Gerald H.B. Kane, Jr., Redondo Beach, and Richard F. Gerry, San Diego, for petitioners.
Leonard Sacks, Northridge, Jean Corey, Palos Verdes, Al Schallau, Ranch Palos Verdes, Wylie A. Aitken, Santa Ana, Harlan Arnold, Beverly Hills, Glen T. Bashore, North Fork, Ray Bourhis, San Francisco, Richard D. Bridgman, Oakland, Edwin Train Caldwell, San Francisco, Victoria DeGoff, Douglas K. deVries, Sacramento, Sanford M. Gage, Beverly Hills, Ian Herzog, G. Dana Hobart, Stanley K. Jacobs, Los Angeles, Harvey R. Levine, San Diego, John C. McCarthy, Claremont, Timothy W. Peach, San Bernardino, Robert H. Sulnick, Los Angeles, Arne Werchick, Sausalito, and Stephen I. Zetterberg, Claremont, as amici curiae on behalf of petitioners.
No appearance for respondent.
Sedgwick, Detert, Moran & Arnold, Stephen W. Jones, Berridge R. Marsh and Marie Sovey Silveira, Hardin, San Francisco, Cook, Loper, Engel & Bergez, Gennaro A. Filice III, Matthew S. Conant, Oakland, O'Connor, Cohn, Dillon & Barr, Mark Oium, Glenn A. Friedman, Landels, Ripley & Diamond, James A. Bruen, Stephen C. Lewis and Deborah J. Schmall, San Francisco, for real parties in interest.
Petitioners, plaintiffs below, seek a writ of mandate ordering respondent superior court to vacate its order compelling plaintiff Bette Gae Mitchell to answer certain questions propounded to her by defendant real parties in interest at her deposition, which she declined to answer on instructions of counsel. The principal issues presented by this case are whether defendants' questions seek information protected by the attorney-client privilege and, if so, whether plaintiff has waived that privilege in pursuing the present action. For reasons outlined herein, we will conclude that the information sought by defendants is covered by the attorney-client privilege and that no waiver thereof has occurred.
The relevant facts of the case were accurately set forth by Justice Martin of the Court of Appeal, 152 Cal.App.3d 1212, 200 Cal.Rptr. 57, and are summarized here in essentially verbatim form.
Gary A. Mitchell and Bette Gae Mitchell are two of more than one hundred plaintiffs who reside near the Thompson-Hayward Chemical Plant near Fresno, California. Petitioners and the other plaintiffs have filed lawsuits alleging contamination of the air and ground water in the vicinity of their homes. Plaintiffs allege the underground aquifer has been contaminated by the chemical dibromochloropropane (DBCP) which was used as an agricultural soil fumigant to kill microscopic, parasitic root worms known as nematodes. They sued a number of entities who manufactured, marketed and distributed DBCP and other involved chemicals.
Plaintiffs' second amended complaint seeks compensatory and punitive damages based upon seven causes of action for personal injuries and property damage, including one for intentional infliction of emotional distress. Plaintiffs assert that the water contamination has caused them "considerable emotional pain, anguish and distress since they are aware that DBCP and the other chemicals are highly toxic and carcinogenic and can produce sterility and genetic damage."
In the course of discovery, defendant T.H. Agriculture and Nutrition Company, Inc. propounded a number of interrogatories to plaintiff Bette Gae Mitchell. The interrogatories and answers relevant to the instant case are selectively reprinted below:
In March and May 1983, defendants took the deposition of Bette Gae Mitchell. During her deposition she stated that all the sources of information she had about DBCP contributed to her distress, as evidenced by the following questions propounded to her and her answers:
During the course of that deposition, defendant sought information about the dates, times and other circumstances of Bette Mitchell's conferences with her attorneys. Defendants sought to elicit details about the nature and content of any warnings, as well as information or documents she received from her attorneys regarding the health effects of DBCP. As to each of these 21 questions, plaintiff's attorney invoked the attorney-client privilege and instructed Bette Mitchell not to answer.
On August 9, 1983, defendant Shell Oil Company moved for an order to compel answers to the questions which Bette Mitchell declined to answer on instructions of counsel. Defendants contended that these questions were critical to the issues of emotional distress causation and were either not privileged from the outset, or alternatively, that any privilege that existed had been waived. The superior court granted the motion to compel answers to each of the following questions:
The court indicated that questions 1 through 7, 12 and 13 had nothing to do with the content of the communication and were not subject to the privilege in any event. The court further indicated questions 10, 16, 17, 19 and 20 related to the content of a communication, but that the privilege had been waived.
The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years. (McCormick, Evidence (2d ed. 1972) § 87, pp. 175-179; 8 Wigmore, Evidence (McNaughton rev., 1961) § 2290, pp. 542-545; Prichard v. U.S. (6th Cir.1950) 181...
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