Sanders v. Superior Court

• Decision Date: 18 September 1973
• Court: California Court of Appeals Court of Appeals
• Parties: Barry SANDERS, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Real Party in Interest. Civ. 42334.

Page 770

109 Cal.Rptr. 770

34 Cal.App.3d 270

Barry SANDERS, Petitioner, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Real Party in Interest.

Civ. 42334.

Court of Appeal, Second District, Division 3, California.

Sept. 18, 1973.

Bodle, Fogel, Julber, Reinhardt & Rothschild, Daniel Fogel, Larry R. Feldman, Los Angeles, for petitioner.

Cummins, White & Breidenbach, Wayne R. Sims, Los Angeles, for real party in interest.

ALLPORT, Associate Justice.

On June 21, 1973, this court ordered the issuance of an alternate writ of mandate requiring respondent court to vacate its order of May 30, 1973, conditionally granting a motion to quash subpoenas duces tecum re deposition and to make a new and unconditional order to quash or in the alternative to show cause why a peremptory writ of mandate compelling such action should not issue.

The superior court file in action number C 32155 entitled Barry Sanders v. Southern Pacific Transportation Company, of which we take judicial notice, discloses that on June 14, 1972, Barry Sanders, an employee of Southern Pacific Company, filed an action against his employer under the provisions of the Federal Employers' Liability Act, 45 U.S.C. section 51 et seq., for personal injuries. The declarations of Sanders and his attorneys disclose that the former received his medical care and treatment for his injuries from the employer's doctors and that he was referred to Drs. Greenspahn, McCaskill and Gregg, by his attorneys 'so that these doctors could examine Barry Sanders, interpret his symptoms and inform me (attorney Feldman) what they felt was medically wrong with him.' The declarations further stated that the information given to these doctors and the doctors' reports were confidential and for the purpose of trial preparation and damage evaluation. The declarations are devoid of any indication that these doctors would or would not be called upon to render care and treatment to the patient or that they or their reports would be used during trial of the action. A medical examination of Sanders by a Dr. Kempf, selected for the purpose by the employer, was scheduled for June 29, 1973. On June 1, 1973, the employer sought to obtain access to the records of Drs. Greenspahn, McCaskill and Gregg by serving subpoenas duces tecum re depositions upon the custodians of these records.

A motion to quash these subpoenas was granted on the following conditions: 'The deposition of the custodian of records for Doctors Greenspahn, Gregg and McCaskill shall be quashed and vacated, and the process thereon (subpoenas duces tecum) are quashed, upon plaintiff filing and serving a declaration, in writing, stating that said doctors, or any of them, shall not be called as an 'expert witness' at the time of trial in this matter. Said declaration to be filed and served within five days. In the event that plaintiff fails to file and serve such declaration as to any or all of said witnesses, or fails to name any of said doctors in any such declaration, the custodian of records shall appear for his deposition and shall produce the records of such nondesignated doctor. If the deposition should proceed as to any or all of the records of said doctors, on objection and instruction of counsel, the witness may decline and refuse to answer any questions or to exhibit any writing pertaining to any report prepared by him on the ground that the question or material calls for the work produce (sic) of plaintiff's counsel and relates to advice given to plaintiff's attorney concerning tactics, trial preparation and forensic and advocacy techniques. The Court finds that the basis for granting the protective order pursuant to CCP 2019(b) is that said doctors may have been engaged as counselors and advisers and not as potential expert witnesses.' Sanders seeks an order of this court vacating the conditional aspects of the order set forth above.

For obvious reasons the use of original writ procedures in the appellate courts to control discovery is a practice to be discouraged. In Pacific Tel. & Tel. Co. v. Superior Court, 2 Cal.3d 161, 169--171, 84 Cal.Rptr. 718, 723--725, 465 P.2d 854, 859--861, it was said:

'Initially, we must consider the availability of the prerogative writ sought by the defendants in this setting. We spoke directly to the question of the circumstances that would normally justify the invocation of an extraordinary writ in discovery cases in Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185--186 (fn. 4) 23 Cal.Rptr. 375, 378, 373 P.2d 439, 442: 'The prerogative writs have been used frequently to review interim orders in discovery cases (citations). But this does not mean that these discretionary writs will or should issue as of course in all cases where this court may be of the opinion that the interim order of the trial court was erroneous. In most such cases, as is true of most other interim orders, the parties must be relegated to a review of the order on appeal from the final judgment. As inadequate as such review may be in some cases, the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases."

'Nevertheless, appellate courts must keep in mind that too lax a view of the 'extraordinary' nature of prerogative writs, rendering substantial pretrial appellate delay a usual hazard of the use of discovery, is likely to result in more harm to the judicial process than the denial of immediate relief from less significant errors. In our judgment, the lack of general import of the petitioner's objections in the instant case might well in itself have presented a persuasive ground for an immediate denial of the writ sought. ¹¹ Since the Court of Appeal- has already issued an order to show cause, however, and since the plaintiff did not raise this point either before the Court of Appeal or this court, and since the case has been fully briefed on the merits, we proceed to evaluate the main contention raised by the petition. (See Rosemont v. Superior Court (1964) 60 Cal.2d 709, 712, 36 Cal.Rptr. 439, 388 P.2d 671.)'

Since the practice is not considered inappropriate in all cases and in view of the nature of the problem presented herein and for reasons stated in Pacific Tel. & Tel. Co., supra, we reluctantly proceed to review a discovery ruling made below.

Our function in reviewing the order in question is summarized in Pacific Tel. & Tel. Co., Supra, 2 Cal.3d at page 171, 84 Cal.Rptr. at page 725, 465 P.2d at page 861, as follows:

'In reviewing an order of a superior court granting discovery, we recognize at the threshold that 'the discovery statutes vest a wide discretion on the trial court in granting or denying discovery' and 'such exercise (of discretion) may only be disturbed when it can be said that there has been an abuse of discretion.' (Greyhound Corp. v. Superior Court, Supra, 56 Cal.2d 355, 378, 380, 15 Cal.Rptr. 90, 100, 364 P.2d 266, 277.) In Greyhound, however, we regarded the matter sufficiently important to state clearly that in passing on orders Denying discovery appellate courts 'should not use the trial court's discretion argument to defeat the liberal policies of the statute.' (Greyhound Corp. v. Superior Court, Supra, 56 Cal.2d 355, 378--379, 15 Cal.Rptr. 90, 100, 364 P.2d 266, 277.) Appellate courts must keep the liberal policies of the discovery statutes equally in mind when reviewing a decision Granting discovery. In this context, absent a showing by the petitioner that a substantial interest will be impaired by the discovery, the liberal policies of the discovery rules will generally counsel against overturning the trial court's decision granting discovery.'

To the extent the order in the instant case is conditional it is questionable whether or not it should be considered as one granting or denying discovery. In any event the liberal policies of the discovery statutes should be given effect in reviewing the discretionary aspects of the trial court's ruling. While liberality of construction is to be encouraged it is nevertheless recognized that the work product of an attorney is subject to protection and is not discoverable in the absence of a showing of good cause. In Dow Chemical Co. v. Superior Court, 2 Cal.App.3d 1, 5, 82 Cal.Rptr. 288, 291, it was said:

'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.)'

(See also Oceanside Union School Dist. v. Superior Court, 58 Cal.2d 180, 192, 23 Cal.Rptr. 375, 373 P.2d 439.)

While the case of Swartzman v. Superior Court, 231 Cal.App.2d 195, 41 Cal.Rptr. 721, involves expert witnesses in eminent domain, we believe that the rationale of the court therein is persuasive if not controlling of our decision herein. In recognizing that the role of the expert as an advisor to the attorney on matters involving trial preparation and tactics may change when the expert is employed to testify, the Swartzman court said at pages 202--204, 41 Cal.Rptr. at pages 726--728:

'Petitioners attack the order prohibiting the taking of the deposition of the State's independent appraiser, contending that Code of Civil Procedure, section 2016, gives a party an absolute right to take the deposition of anyone at any time, and that a writ of mandate should issue to compel such discovery when denied by the trial court.

The State argues that Code of Civil Procedure, section 2019, (subdivision) (b) (1), permits the trial court to control the exercise of discovery in order to make it...