Williamson v. Superior Court

CourtUnited States State Supreme Court (California)
Citation148 Cal.Rptr. 39,582 P.2d 126,21 Cal.3d 829
Decision Date14 August 1978
Parties, 582 P.2d 126 George WILLIAMSON, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SHELL OIL COMPANY et al., Real Parties in Interest. L.A. 30754.

Page 39

148 Cal.Rptr. 39
21 Cal.3d 829, 582 P.2d 126
George WILLIAMSON, Petitioner,
v.
The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;
SHELL OIL COMPANY et al., Real Parties in Interest.
L.A. 30754.
Supreme Court of California.
Aug. 14, 1978.
Rehearing Denied Sept. 14, 1978.

[21 Cal.3d 831] [582 P.2d 128]

Page 41

Belli & Choulos, Belli, Ashe & Choulos, Irmas, Simke, Chodos & Marshall, Irmas, Simke & Chodos, Roman M. Silberfeld and David Manning Chodos, Los Angeles, for petitioner.

No appearance for respondent.

Morgan, Wenzel & McNicholas, Dennis J. Sinclitico, George H. Ellis, Belcher, Henzie & Biegenzahn, Leo J. Biegenzahn and Uzzell S. Branson, III, Los Angeles, for real parties in interest.

[21 Cal.3d 832] TOBRINER, Justice.

In this petition for writ of mandate plaintiff seeks to discover a report prepared by an expert employed by counsel for one of the defendants in the underlying personal injury suit. Defendant had originally intended to call the expert as a witness at trial, and hence, under the relevant statute and case law, the expert's report would normally have been discoverable by plaintiff. In return for a codefendant's promise of indemnification, however, the defendant who employed the expert subsequently withdrew him as a witness. This case therefore presents the question whether the withdrawal of the expert witness on the basis of such an indemnification agreement reestablishes the privilege against disclosure enjoyed by defendant or leaves the plaintiff free to discover the content of the report. Although the trial court denied plaintiff access to the report, we have concluded that under the circumstances of this case plaintiff is entitled to discover the contents of the report.

In September 1971, plaintiff George Williamson filed suit against defendants Shell Oil Company (Shell), Firestone Tire and Rubber Company (Firestone), and Big Four Automotive Equipment Corporation (Big Four), seeking damages for personal injuries which he sustained in Shell's employ while using a tire-changing machine manufactured by Big Four to install a Firestone tire. Plaintiff alleged defects in both the tire and the tire-changing machine.

During the course of discovery proceedings, Big Four employed O. Edward Kurt to investigate the accident and to submit a report. Following his investigation, Kurt submitted a report which stated that in his opinion the cause of the accident was Firestone's defective tire, and not any defect in the Big Four machine. After receiving this report, which, of course, was quite favorable to its case, Big Four designated Kurt as an expert witness to testify at trial. Plaintiff arranged to take Kurt's deposition and thereby to learn the results of Kurt's investigation.

Plaintiff, however, never learned the results of the investigation. On the eve of Kurt's scheduled deposition, and following a meeting with Firestone's counsel, Big Four withdrew Kurt's designation as expert witness. Plaintiff states without contradiction that at the meeting between defendants' counsel, Big Four discussed Kurt's findings with Firestone [21 Cal.3d 833] and turned over copies of Kurt's report to Firestone. 1 After examining the report, Firestone's counsel, who naturally preferred the nondisclosure of Kurt's adverse findings, entered into an agreement with Big Four which provided that if Big Four withdrew Kurt as a witness, withheld his report from plaintiff's counsel, and refused to permit plaintiff's counsel to depose him, Firestone would indemnify Big Four against any liability Big Four might incur arising from plaintiff's injuries. In other words, Big Four agreed to silence its expert and withhold the information contained in his report from plaintiff[582 P.2d 129] in return for valuable consideration indemnification from Firestone.

Big Four thereafter complied with its promise to Firestone, withdrawing Kurt as a prospective witness and rebuffing plaintiff's

Page 42

attempt to depose Kurt or to obtain a copy of Kurt's report. Plaintiff sought an order of the trial court to compel Kurt's deposition and production of his report. Although the trial court authorized the deposition, it substantially limited the areas of plaintiff's inquiry, precluding plaintiff from discovering the results of Kurt's investigation and his analysis of the accident.

Plaintiff then filed a petition for writ of mandate in the Court of Appeal, seeking relief from the trial court's order. Although recognizing that extraordinary writs should not issue routinely in discovery cases, the Court of Appeal concluded that because the case presented "questions of first impression that are of general importance to the trial courts and to the profession" (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; see also Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169-171, 84 Cal.Rptr. 718, 465 P.2d 854), an alternative writ should issue. After a hearing, the Court of Appeal ultimately determined that a preemptory writ of mandate should issue; we granted a hearing in order to resolve the novel issue of work product doctrine which this case presents.

Code of Civil Procedure section 2016, subdivision (b) provides in pertinent part, "The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not [21 Cal.3d 834] be discoverable under any circumstances." Accordingly, subdivision (b) affords a conditional or qualified protection for work product generally, and an absolute protection as to an attorney's impressions and conclusions. As subdivision (g) of the same section explains, "It is the policy of this state (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry or efforts."

Section 2016 contains no definition of work product beyond extending protection to "any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." The cases indicate generally, however, that "material of a derivative character, such as diagrams prepared for trial, audit reports, appraisals, and Other expert opinions, developed as a result of the initiative of counsel in preparing for trial," are also to be protected as work product. (Emphasis added.) (Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10, 66 Cal.Rptr. 280, 283; accord, Southern Pacific Co. v. Superior Court (1969) 3 Cal.App.3d 195, 198-199.) In San Diego Professional Association v. Superior Court (1962) 58 Cal.2d 194, 204-205, 23 Cal.Rptr. 384, 373 P.2d 448, for example, we held that expert engineers' "evaluation and opinions" commissioned by an attorney for the purpose of preparing for trial was work product. "Whatever the extent of the concept of an attorney's work product may be, it is clear that . . . it is . . . the attorney's work, or that of his agents or employees, that is involved . . . ." (Emphasis omitted.) (Wilson v. Superior Court (1964) 226 Cal.App.2d 715, 724, 38 Cal.Rptr. 255, 261 (hg. den., May 27, 1964).) Thus as an expert opinion, developed as a result of the initiative of counsel in preparing for trial, Kurt's report clearly constitutes the work product of Big Four's counsel.

The issue before us, however, is whether Kurt's report, as work product of Big Four's counsel, should be protected against disclosure under section 2016. While it may be appropriate to give broad immunity from discovery to an expert Consultant's Report developed at the initiative [582 P.2d 130] of counsel in preparation for trial, the courts agree that the initial status of the expert as consultant changes once the expert becomes a designated prospective witness. As the court stated in Swartzman v.

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Superior Court (1964) 231 Cal.App.2d 195, 203, 41 Cal.Rptr. 721, 727, hg. den., Feb....

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