Fireman's Fund Insurance v. Superior Court
196 Cal. App. 4th 1263
| Cal. Ct. App. | 2011Background
- Fireman’s Fund seeks writ of mandate to overturn trial court’s order requiring deposition of attorney Dubbs to answer five privilege-objected questions.
- Chand, a former Primero employee, provided Chand documents to CCP; Chand alleged insurance fraud by Front Gate and related entities.
- Chand’s documents sparked discovery disputes and creation of a Referee to resolve Chand document issues and potential ethical implications.
- Trial court narrowed attorney-client privilege to direct communications only and applied only a qualified work product privilege for unwritten material.
- Fourth Report recommended answering all ten questions; Fireman’s Fund agreed to five, objected to five as privilege violations; writ granted on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of attorney-client privilege | privilege extends to shared communications among necessary counsel | privilege limited to direct client-attorney communications | Privilege extends beyond direct client-attorney communications |
| Scope of absolute work product privilege | unwritten opinion work product deserves absolute protection | absolute protection only for writings; unwritten not fully protected | Unwritten opinion work product is absolutely protected |
| Application to questioned items | questions 5,6,9,10 target protected material and should be blocked | some questions seek nonprivileged factual information | Questions 5,6,9,10 (and part of 7) blocked by absolute privilege |
Key Cases Cited
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (Cal. 2009) (trusts privilege scope; discovery abuse standard)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (origin of work product doctrine; protect thoughts)
- Greyhound Corp. v. Superior Court, 56 Cal.2d 355 (Cal. 1961) (legislative shift to codify work product in California)
- Dowden v. Superior Court, 73 Cal.App.4th 126 (Cal. App. 1999) (history of California work product privilege)
- Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89 (S.D. Cal. 1987) (federal view on privilege extending to nonwritten material)
- Laxalt v. McClatchy, 116 F.R.D. 441 (D. Nev. 1987) (nonwritten opinion work product protection rationale)
- In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3d Cir. 2003) (strong protection for opinion work product)
- BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d 1240 (Cal. App. 1988) (abuse of discretion in privileege application; absolute vs. qualified)