62 Cal.App.5th 453
Cal. Ct. App.2021Background
- Curtis, a defense attorney, consulted a non‑testifying plaintiffs’‑side employment lawyer ("Doe 1") during the Saccio trial and used Doe 1's advice in posttrial fee opposition; Doe 1 allegedly forwarded a members‑only CELA Listserv posting to Curtis.
- CELA sued to identify the CELA member(s) who breached a confidentiality agreement by forwarding the Listserv posting (Does 1–5); Curtis was subpoenaed and deposed and refused to identify Doe 1, asserting work‑product protection.
- The trial court granted CELA’s motion to compel Curtis to disclose Doe 1’s identity, reasoning Doe 1 was a percipient fact witness in the CELA action and, even if a consulting expert, the identity was at most qualified work product and CELA had shown prejudice if disclosure were denied.
- Curtis appealed the discovery order; the Court of Appeal dismissed the appeal as nonappealable but treated it as a petition for writ of mandate under Olson and reviewed the trial court’s exercise of discretion.
- The appellate court held the identity of a nontestifying expert is not absolutely protected as work product under §2018.030(a) but may receive qualified protection; because CELA showed it could not identify Doe 1 by other means and would be unfairly prejudiced, the court denied the petition and affirmed the compelled disclosure.
Issues
| Issue | Plaintiff's Argument (CELA) | Defendant's Argument (Curtis) | Held |
|---|---|---|---|
| Whether the identity of a nontestifying expert is absolutely protected as work product | Not absolute — identity is not a "writing" conveying impressions or legal theories | Identity is core opinion work product revealing tactics and thus absolutely protected | Not absolute; identity is not per se a "writing" reflecting impressions, so §2018.030(a) does not apply |
| Whether the identity is entitled to qualified work‑product protection and, if so, whether CELA overcame it | If qualified, CELA has shown prejudice and inability to identify Doe 1 by other means, so disclosure is warranted | Qualified protection applies and balancing favors protecting consultant relationships and future preparation | Identity may be qualified work product, but CELA met its burden to show denial would unfairly prejudice its case; disclosure proper under abuse‑of‑discretion review |
| Whether the order compelling disclosure was immediately appealable | Discovery order not appealable; but urgent review warranted because Curtis is a nonparty | Collateral‑order or other exception permits immediate appeal to protect privilege | Appeal dismissed as nonappealable; court exercised discretion to treat the appeal as a writ petition under Olson and proceeded to deny the petition |
| Whether Doe 1’s status as a percipient fact witness in the CELA suit negates Curtis’s work‑product claim | Doe 1 is a fact witness here, so no work‑product protection applies | Prior consulting role created surviving work‑product protection despite Doe 1’s status in this action | Being a percipient witness in the current action does not automatically defeat surviving qualified work‑product protection; but here disclosure was compelled after balancing |
Key Cases Cited
- Olson v. Cory, 35 Cal.3d 390 (treating nonappealable interlocutory appeals as writs in unusual circumstances)
- Coito v. Superior Court, 54 Cal.4th 480 (analysis of absolute vs. qualified work‑product protection for witness statements and foundational showing rule)
- Dana Point Safe Harbor Collective v. Superior Court, 51 Cal.4th 1 (finality test for appealability: substance and effect determine finality)
- H.B. Fuller Co. v. Doe, 151 Cal.App.4th 879 (exception to nonappealability for out‑of‑state discovery orders identifying anonymous defendants)
- Warford v. Medeiros, 160 Cal.App.3d 1035 (same—limits on reviewability of discovery where no further California review will occur)
- Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 264 (work‑product privilege belongs to attorney; absolute vs. qualified distinction)
- Fellows v. Superior Court, 108 Cal.App.3d 55 (work‑product privilege survives termination of litigation and is held by counsel)
- Fireman’s Fund Ins. Co. v. Superior Court, 196 Cal.App.4th 1263 (discussion regarding unwritten opinion work product and absolute protection)