Raytheon Co. v. Superior Court, H005297

Citation256 Cal.Rptr. 425,208 Cal.App.3d 683
Decision Date07 March 1989
Docket NumberNo. H005297,H005297
PartiesRAYTHEON COMPANY, Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; RENAULT & HANDLEY EMPLOYEES INVESTMENT CO., et al., Real Parties in Interest.
CourtCalifornia Court of Appeals
Cooley, Godward, Castro, Huddleson & Tatum and Lloyd R. Day, Jr. and Gordon C. Atkinson and Robin J. Seeley, Palo Alto, for petitioner and defendant

No appearance for respondent.

Lawrence A. Hobel and Jeffrey J. Lederman and Mark Fowler and John L. Antracoli and Ware & Freidenrich, Palo Alto, for real parties in interest and plaintiffs.

PREMO, Associate Justice.

This is a proceeding in mandate. Petitioner Raytheon Company ("Raytheon") seeks review of a discovery order of the superior court which granted the motion of plaintiffs and real parties in interest Renault & Handley Employees Investment Co., Raymond G. Handley, Milla C. Handley, Y.A. Tittle, Minette Tittle, Carolyn Handley Gillen, Jeffrey Handley, and Mary Robins (collectively "Renault"), to compel production of documents. Raytheon claims these documents are protected by the attorney-client and work product privileges, respectively. In the underlying action, Renault sued Raytheon and other defendants (including Intel Corporation) for contract and tort claims related to the toxic condition of sites located in Mountain View, California. Raytheon and others are alleged to have contributed in varying degrees to this toxic condition. The court ruled that Raytheon must produce certain so-called "circulated documents" because they had been shown to "adversarial" codefendants. Raytheon claimed attorney-client and work product privilege as to these documents, without specifying what privilege applies to each document.

The trial court herein ruled that Raytheon has waived all claims of attorney-client or of work product privilege with respect to documents shown to codefendants or their counsel, and that Raytheon must produce these documents in discovery. However, for reasons we shall state, we believe that (1) the trial court erred in finding waiver on the basis of the Supreme Court decision in Williamson v. Superior Court (1978) 21 Cal.3d 829, 148 Cal.Rptr. 39, 582 P.2d 126, and (2) the record does not support the trial court's finding of waiver. Accordingly, we shall issue the peremptory writ of mandate directing the court to vacate its ruling and to reconsider the matter in accordance with this opinion.

RECORD

The plaintiffs first filed this lawsuit in August 1984. The United States Environmental Protective Agency (EPA) began an investigation of the contaminated site in August 1985. Raytheon, Intel, and others entered into an administrative consent order on August 15, 1985. That date pinpoints The documents ordered to be disclosed were primarily generated during the federal administrative investigation. Raytheon describes the documents which it claims are privileged as follows: "Correspondence, memoranda, reports and other documents dated variously 1984 to 1988 prepared by Fairchild Semiconductor Corporation, its counsel and/or its consultants, Intel Corporation, its counsel and/or its consultants, or Raytheon, its counsel and/or its consultants, which were prepared and distributed among such parties and counsel at the direction of counsel."

the beginning of any cooperative administrative investigation.

Raytheon seeks writ review. It contends that the so-called circulated documents were draft reports and related correspondence generated during an administrative investigation of the toxic condition of the properties. Further, Raytheon argues that in this administrative investigation, Raytheon, Fairchild, and Intel were not adversaries but were cooperating jointly with the investigating agencies so as to expedite remedial measures most efficiently. Accordingly, Raytheon says it waived no applicable privilege by circulating these documents to codefendants or their counsel during the process, since it disclosed the material only to cooperating nonadversarial coparties. Raytheon contends that it would be against public policy to find waiver under these circumstances, for if privilege were waived by joint sharing in such cases, then in the future it would be difficult to secure a jointly cooperative effort to remedy toxic contamination.

The trial court based its ruling exclusively on Williamson v. Superior Court, supra, 21 Cal.3d 829, 148 Cal.Rptr. 39, 582 P.2d 126.

DISCUSSION

Despite the general rule disfavoring writ review of discovery matters, writ review is appropriate when petitioner seeks relief from an order which may undermine a privilege. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5, 123 Cal.Rptr. 283, 538 P.2d 739; Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, 107 Cal.Rptr. 309, 508 P.2d 309.) As the court explains in Roberts, interlocutory review by writ is the only adequate remedy in such cases, since once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure. (Roberts, supra, at p. 336, 107 Cal.Rptr. 309, 508 P.2d 309.) Further, the attorney-client privilege deserves a particularly high degree of protection in this regard since it is a legislatively created privilege protecting important public policy interests, particularly the confidential relationship of attorney and client and their freedom to discuss matters in confidence. (See e.g., Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599, 208 Cal.Rptr. 886, 691 P.2d 642.)

Contrary to the ruling below, the decision in Williamson does not control this matter. In Williamson, one defendant showed a codefendant an expert opinion highly critical of the latter, and codefendant agreed to indemnify the first defendant in return for suppression of that report. Williamson ordered disclosure, holding it was against public policy for one defendant to agree with an adversarial codefendant to suppress the results of an investigation. The decision expressly did not reach the issue of waiver by disclosure to an adversarial codefendant. (21 Cal.3d at p. 837, fn. 4, 148 Cal.Rptr. 39, 582 P.2d 126.) The case turned on the narrow public policy ground that a bargain to suppress evidence is disfavored for obvious reasons. Those facts do not fit this case, and the issue here is simply whether a waiver occurs when adversaries voluntarily share otherwise privileged information.

Renault claims that Raytheon and the codefendants have always been adversaries, both regarding their positions in the administrative investigation and their roles in the litigation involved here. Renault contends that during the investigation, it was always in the interests of each potential toxic contaminator to shift as much as possible of the percentage of blame to other parties because the governing law provides for contribution based on the degree Defendants' answers were not actually filed until late in 1988, a fact from which Raytheon argues that the codefendants were in no sense adversaries when the circulated documents were generated, during the period 1984 to 1988. However, the postponement in filing the formal answers was solely by virtue of the companies' mutual agreements back in August 1984, tolling the statutes of limitations and postponing prosecution of the litigation. During the period of time between 1984 and 1988, while governmental agencies were investigating the toxic contamination, Raytheon admits it was preparing its defenses against other parties. Renault argues those parties must have included all codefendants. However, Raytheon emphasizes there are no formal cross-claims on file among the defendants.

of fault. Moreover, in the litigation, first filed in August 1984, Raytheon and other defendants were always potential adversaries in the sense that it would be in the interests of each to shift to the other responsibility for the toxic condition. Furthermore, the defendants became official adversaries when they formally answered the fourth amended complaint, with each defendant disclaiming responsibility for the soil and groundwater contamination of the lots in question and seeking to point the finger of blame at the other.

Plainly some of the circulated material was generated before the date the administrative investigation began. Nevertheless, Raytheon claims commonality of interest with Intel and Fairchild as to all circulated documents, based on alleged joint cooperation during the investigation.

We consider the controlling law regarding waiver of privilege by disclosure. The statute regarding waiver of the attorney-client privilege, Evidence Code section...

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