DION R. HOLM, City Attоrney, etc., et al., Petitioners, v. SUPERIOR COURT FOR THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; WYNONA BELL, Real Party in Interest.
S. F. No. 18781
In Bank
Mar. 12, 1954
April 7, 1954
42 Cal. 2d 500
For the foregoing reasons I would reverse the judgment and permit the defendants to answer if they be so advised.
Schauer, J., concurred.
Appellants’ petition for a rehearing was denied April 7, 1954. Carter, J., and Schauer, J., were of the opinion that the petition should be granted.
Bronson, Bronson & McKinnon and Roy Bronson as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Shirley, Saroyan, Calvert & Barbagelata and J. Francis Shirley for Real Party in Interest.
SHENK, J.—The petitioners seek a writ of prohibition to restrain the respondent court from enforcing its order for the inspection of certain documents in their possession. An alternative writ was issued.
The order was made in an action in which Wynona Bell, referred to as the plaintiff, seeks to recover damages from the
The pertinent parts of
In support of the motion for the order of inspection it was stated in affidavits on behalf of the plaintiff that she had signed a written statement setting forth factual information material to the controversy, the contents of which she could not remember and a copy of which had not been furnished her. It was stated in an affidavit of the plaintiff‘s counsel that the documents involved were recorded and preserved in the “regular course of business of defendants in the operation of the Municipal Railway.” It is claimed that a deposition of the petitioner Gnecco, not made a part of the record here, also contains evidence that the reports were filed in the regular course of business. There is no further reference to the purpose of the documents in the complaint, the notice of motion, other supporting affidavits or in any other documents which are a part of the plaintiff‘s record. The deputy city attorney and the general claims agent for the Municipal Railway, in affidavits filed on behalf of the petitioners, stated that the questioned documents had been kept in confidence in the possession or control of one of them since
The foregoing was the only evidence before the court. The motion was granted as to the documents involved, and the court ordered the petitioners to produce them. Thereafter a motion to vacate the order was denied. The petitioners refused to comply with the order asserting that the court lackеd jurisdiction to make it. The court threatens to enforce its order by contempt proceedings and the petitioners seek to restrain its enforcement by this application for the writ of prohibition.
The order is not appealable and prohibition is the proper remedy. (City & County of San Francisco v. Superior Court, 38 Cal.2d 156 [238 P.2d 581]; Franchise Tax Board v. Superior Court, 36 Cal.2d 538 [225 P.2d 905].)
The petitioners’ main contentions are that the attorney-client privilege (
In regard to the latter contention it is true that there formerly was no right in equity to inspect an adversary‘s documentary evidence. (6 Wigmore, Evidence, 3d ed., 1940, § 1857, p. 443.) However, while the cases hold that
Where the use of the statutory bill of discovery is denied by our courts it usually is because the information sought to be obtainеd is not relevant or material to any of the issues in the case. (Union Collection Co. v. Superior Court, 149 Cal. 790 [87 P. 1035]; Ex parte Clarke, 126 Cal. 235 [58 P. 546, 77 Am.St.Rep. 176, 46 L.R.A. 835].) It has been said that the documents also must be properly identified and admissible in evidence at the ensuing trial. (McClatchy Newspapers v. Superior Court, 26 Cal.2d 386 [159 P.2d 944].) But none of the cases hold that
There is no question but that the documents here sought to be inspected are material and relevant to questions in issue, would be admissible in evidence, and are within the scope of
The right to maintain the security of a confidential communication under the attorney-client privilege is set forth in
The objective of making a particular communication privileged is to encourage a client to make a complete dis-
In any given situation it is necessary that a determination be made concerning the facts asserted as a basis for the privilege. This determination is for the trial court in the first instance. Where it is clear that the communication has but a single purpose, there is little difficulty in concluding that the privilege should be applied or withheld accordingly. If it appears that the communication is to serve a dual purpose, one for transmittal to an attorney “in the course of professional employment” and one not related to that purpose, the question presented to the trial court is as to which purpose predominates. The question then is whether the conclusion of the trial court on the facts is correct or has resulted in an abuse of discretion.
In the present case the plaintiff‘s statement to the city‘s claims investigator was recorded as she made it. After being transcribed she signed her name to the document. Her assertions that she was not given a copy of the statement and that she does not remember what she said are not disputed. She does not seek to have disclosed any communication from her adversaries to their attorneys. She merely seeks the record of a communication which she herself made
As to the reports and photographs it is clear that from their character and content they fall within the privilege. Both originated with agents of the city and it is undisputed that they were forwarded in confidence to the defendants’ attorneys for use in possible litigation. It is stated in City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227 at page 235: “The privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney.” And at page 236-237: “It is no less the client‘s communication to the attorney when it is given by the client to an agent for transmission to the attorney, and it is immaterial whether the agent is the agent of the attorney, the client, or both. ‘[T]he client‘s freedom of communication requires a liberty of employing other means than his own personal action. The privilege of confidence would be a vain one unless its exercise could be thus delegated. A communication, then, by any form of agency employed or set in motion by the client is within the privilege . . . (8 Wigmore, supra, § 2317, pp. 616-617. . . .)‘” It follows thаt where the communication is between corporate employees and is embodied in reports or photographic evidence for the purpose of redelivery to a corporate attorney the privilege attaches if the reports and photographs were created as a means of communicating confidential information to the attorney.
The present proceeding calls for the determination of the dominant purpose for which the reports and photographs were created. As previously stated, the affidavits of the petitioners in the trial court revealed that the documents were prepared as confidential communications to the city attorney in threat of litigation and that the documents had at all times been treated as such. These affidavits were uncontradicted as to the purpose of the documents. In this connection the plaintiff asserts only that they were prepared in the regular course of business. But there is no valid basis for a distinction between a communication created for transmittal to an attorney to prepare for threatened litigation following
In any action for damages such as the pending one it is of considerable importance to obtain all information available at the scene of the accident in order to safeguard the rights of the party likely to be charged with negligence. It is because of this fact that diligence is required in behalf of such party to avoid or prepare for litigation. In view of the imminent possibility that the city would be faced with a claim involving substantial liability for personal injuries far exceeding financial considerations in any other respect, it is unreasonable and unrealistic to say that the communication of the documentary information to the attorneys for use in their professional capacity was not foremost and predominately in the minds of those securing and transmitting the same.
The court did not make specific findings of fact upon which its order for the production of the documents was based. However, in view of the undisputed evidence both as to the intended purpose and the actual practice followed any determination which would not accord greater importance to the purpose of communications to the attorneys in their professional capacities than to any other purpose would be an abuse of discretion. The attorney-client privilege is an important element in the effectiveness with which the counselor-at-law is to advise his client and safeguard the latter‘s interests. Where, as here, the right to the privilege is clearly established it should not be cast aside. The fact that the information contained in the communications might also be used for incidental purposes not entitled to the privilege is unimportant.
The question of the application of
Numerous decisions in other states have held that where confidential reports were submitted by agents of a corporation for transmittal to the corporate attorney, the privilege attached as against proceedings for discovery. (See cases compiled in 146 A.L.R. at 988.) In many of the cases it was emphasized that the crucial question is the purpose for which the communication originated. In Cully v. Northern P. R. Co., 35 Wash. 241 [77 P. 202], the court held that routine correspondence, reports and documents relating to the accidental injury of the plaintiff were privileged, the court stating: “We can conceive of no reason why a differеnt rule should apply in this case than prevails in the case of privileged communications generally.”
It is concluded that the confidential communications embodied in the reports and photographs are protected by the attorney-client privilege. As to those documents the peremptory writ is granted; as to the document containing the signed statement of the plaintiff to the defendant‘s investigator, the writ is denied. The alternative writ is discharged.
Gibson, C. J., Edmonds, J., Schauer, J., and Spence, J., concurred.
TRAYNOR, J., Concurring and Dissenting.—The primary object of the attorney-client privilege is to encourage the client to make a full disclosure of all the facts to his attorney. To achieve this object it is proper that the client should be allowed to employ whatever means of communication are necessary accurately to inform his attorney of the facts. (City & County of San Francisco v. Superior Court, 37 Cal.2d 227, 235-237 [231 P.2d 26, 25 A.L.R.2d 1418], and cases and authorities cited.) Accordingly, the privilege is not lost if the client casts his communication in the form of reports compiled by him or his agents for that purpose. Moreover,
No problem is presented if it is clear that the only purpose of preparing a report is to communicate it to the attorney. In many situations, however, reports will be made for other purposes as well. The question arises, therefore, whether the existence of purposes for preparing reports in addition to that of communicating with the attorney will defeat the privilege. This question may only be answered by evaluating the relative importance of the purposes present in the light of the object of the privilege, bearing in mind that it “is strictly construed, since it suppresses relevant facts that may be necessary for a just decision.” (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 234.)
If the purposes other than that of communicating facts to the attorney are so minor that the client would not create reports if no communication were contemplated, the existence of such purposes should not defeat thе privilege. In such cases to encourage full disclosure it is necessary to encourage the creation of the reports, and accordingly, the object of the privilege is served by making them privileged. If, on the other hand, reasons unrelated to the seeking of legal advice or service would cause the client to create reports, they should not be privileged. In such cases the reports would be created in any event, and accordingly, whether or not they were privileged would not affect their being created. It follows, therefore, that in any case where reports are made, not only for the purpose of communicating to the attorney, but for other purposes as well, the object of the privilege is subserved only by making those reports privileged that would not be created but for the purpose of communication.
In the present case it is true that one reason the muniсipal railway secures accident reports from its employees and takes photographs is to communicate facts to its attorney. The
I concur in the conclusion of Mr. Justice Shenk that plaintiff‘s statement was not privileged.
I would deny the writ in its entirety.
CARTER, J.—I dissent.
The decision of the majority in this case is another step backward in the administration of justice—the denial of the power of a trial judge to force the adverse party to produce competent, material evidence germane to the issues in the case notwithstanding a showing that the evidence had been prepared in the ordinary course of defendant‘s business and was then available.
There can be no doubt that upon the facts stated in the affidavits before the superior court it could conclude either that the papers sought to be inspected were prepared for the purpose of litigation and transmittal to the attоrney for Gnecco and the city, and hence privileged, or that they were not; that they were prepared in the regular course of business of efficiently operating the transportation system and hence not privileged. It chose to believe those supporting the latter view. I agree that the papers were properly inspectable under
As stated by the District Court of Appeal when this case was decided by that court by unanimous decision (Cal.App.)
“Nor can it be said that any of the documents are privileged as petitioner contends. The photographs have simply recorded what any eyewitness could have seen. The statement of facts by the plaintiff was made to the defendant‘s agent. Certainly, the relationship of client and attorney did not exist between Wynona Bell and the city attorney. They were dealing at arm‘s length. Although the report of Gnecco, the driver, originated with him, it does not appear to have been directed to any attorney. In fact the record does not disclose that Gnecco had any attorney at the time the report was made up. The report appears to be more of a statement of facts for study in the prevention of accidents than a communication from a client to his attorney. As is stated in Wigmore on Evidence, section 2318, second edition, it is only those documents which the party has created as a communicating client, that are privileged.
“In Construction Prod. Corp. v. Superior Court, 103 Cal.App.2d 403, 404 [229 P.2d 399], it is said that ‘In determining the propriety of an order under section 1000, Code of Civil Procedure, it must be borne in mind that the trial court‘s action thereunder is discretionary and that all intendments are in favor of the validity of such order. Accordingly, such action will not be annulled unless a clear abuse of that discretion appears. (Milton Kauffman, Inc. v. Superior Court, 94 Cal.App.2d 8, 16 [210 P.2d 85].)’ The order here made does not appear to violate any fundamental right of the petitioner.”
There was a clear conflict in the affidavits on the question of the purpose for which the papers were prepared. This is apparent on their face. The affidavits of the claimants of the privilege (the city and Gnecco) stated that the papers were for transmittal to their attorney for use in the pending litigation. On the other hand, plaintiff‘s affidavits opposing the privilege stated that they were made in the regular course of business of the city in operating its transportation system and are known as “defect cards” and “defect reports,” that
It is a settled rule that the one claiming the privilege has the burden of establishing the facts as a basis for its application (McKnew v. Superior Court, supra, 23 Cal.2d 58; Carroll v. Sprague, 59 Cal. 655; Sharon v. Sharon, 79 Cal. 633 [22 P. 26, 131]; Collette v. Sarrasin, 184 Cal. 283 [193 P. 571]). Whether the privilege is properly available, is a factual issue to be disposed of according to the principles applicable to such questions. As said in Hager v. Shindler, 29 Cal. 47, 64: “. . . whether a communication by a client to his attorney was made in confidencе, is a question of fact, to be disposed of on principles applicable universally to questions of that character.
“We must assume that the Court below passed upon the point as involving a matter of fact, and found that Mastick‘s knowledge of the voluntary character of the deed was not confidential; and we consider the finding to be well sustained by the evidence.” In Stewart v. Douglass, 9 Cal.App. 712, 714 [100 P. 711], it is said: “The first assignment of error argued by plaintiff relates to the ruling of the court admitting evidence of certain statements made by him to an attorney at law over the objection that they were privileged. When this objection was made, and before passing upon it, the court took the testimony of witnesses to determine whether or not these statements were made in the course of professional employment. This was the proper procedure. The court found that the statements were not so made. It being within the province of the trial court to pass upon this, like any other question of fact, and the evidence being conflicting, the conclusion of the trial court will stand as final.” (Emphasis added.) In Dwelly v. McReynolds, 6 Cal.2d 128 [56 P.2d 1232], this court said at page 131: “The question of privilege was a matter for the trial court‘s determination and its decision, upon conflicting evidence, is conclusive.” Those principles are in accord with the general rule that where there is a conflict in affidavits on a factual issue before the trial court that court‘s resolution thereof is binding on an appellate court. (Voeltz v. Bakery etc. Union, 40 Cal.2d 382 [254 P.2d 553]; Hale v. Bohannon, 38 Cal.2d 458 [241 P.2d 4]; Lohman v. Lohman, 29 Cal.2d 144 [173 P.2d 657];
In the face of these well-established principles the majority holds that while regular course of business was one of the purposes, the dominant or primary purpose was that the papers were prepared and transmitted to the attorney to be used in litigation. In this connection the majority opinion states: “As to the reports and photographs it is clear that from their charactеr and content they fall within the privilege. Both originated with agents of the city and it is undisputed that they were forwarded in confidence to the defendants’ attorneys for use in possible litigation.” This holding disregards the settled rule that the burden of establishing the right to the privilege rests upon the claimants and it is the function of the trial court to determine what the dominant purpose was. The trial court could have rejected the claimants’ conclusionary statements in their affidavits that the papers were for transmittal to the attorneys for the purpose of litigation. In reaching its result the majority states: “These affidavits were uncontradicted as to the purpose of the documents. In this connection the plaintiff asserts only that they were prepared in the regular course of business. But there is no valid basis for a distinction between a communication created for transmittal to an attorney to prepare for threatened litigation following particular accidents, and a communication prepared for an identical purpose under standing rules in the case of all accidents involving personal or property injury. Because the scope of the operations of the defendant city‘s Municipal Railway is such as to require communications of this nature as a routine matter, it cannot be said that the attorney-client privilege did not attach.” The claimant‘s affidavits were contradicted because it appears from plaintiff‘s affidavits that Gnecco‘s statement and the photographs were prepared as a defect report in the regular course of business and not for use in litigation, and, therefore, not within the privilege. If it was “routine” and usual business to have such papers, the fact that they might be used in connection with litigation would not make them privileged. The majority holding ignores the probability that the pаpers were for the purpose of more efficiently operating the transportation system—to check on the skill of the drivers and condition of the equipment in order that appropriate steps could be taken to cure any deficiencies. The trial court
It has been held repeatedly that
“That the trend of judicial decisions is to relax the rules which relate to the taking of evidence by ancillary proceedings, of which the inspection of documents is one method, to the end that the trial of actions may be expedited and justice be more efficaciously and speedily administered, is reflected in many modern decisions, some of which are here noted.” (Emphasis added.)
It has been held thereunder (
As above mentioned the complaint in plaintiff‘s action charged that the negligent operation of the bus by Gnecco, the city‘s driver, caused her injuries. The city and Gnecco answered denying the material allegations and pleaded contributory negligence on the part of plaintiff. The affidavits show that Gnecco made a written report to city officials of the accident, the basis of the action, as shown by his deposition which was taken; that the photographs of the bus and plaintiff were taken by the city shortly after the accident; that 11 days after the accident an agent of the city questioned plaintiff regarding the events that transpired at the accident; and her statements were written by the agent and she signed this statement; that she does not remember what she said because of her emotional and physical condition at the time the statement was taken. While there are conclusionary statements in the affidavits with reference to the materiality of these papers, their relevancy is sufficiently shown. The report of Gnecco of the accident would necessarily include his version of the facts concerning it, the precise matters in issue in the action. It may well be admissible, if it contains admissions against him, to prove negligence, or even for the same purpose against the city if within the scope of his employment. Also, it may be admissible to impeach his testimony at the trial if there is a variance. Plainly the photographs of the bus and the scene of the accident are relevant and commonly used. (See 10 Cal.Jur. 860, 896;
It is urged, however, that under the equity bill of discovery rules; an inspection before trial cannot be had by a party (plaintiff herе) to ascertain the documentary evidence which his opponent (petitioners here) has to support his own case. The general rule at common law was that a party was not entitled to ascertain before trial the tenor of his adversary‘s evidence. (Wigmore on Evidence (3d ed.), § 1845.)
“In short, there was in chancery no exception to the broad principle of the common law that a party is not entitled to ascertain before trial the tenor of the documentary evidence which the adversary possesses to support his own case.” (Ibid., § 1857.)
To simplify the matter, most states adopted statutes authorizing law courts to order pretrial inspection of documents. (Ibid., § 1859.) This state has had such a statute since its inception (California Practice Act,
With the thought in mind that
In this state, the cases have not indicated that the limitation in the bill of discovery existed under
I conclude, therefore, that the materiality of the papers included in the inspection order clearly appears and that they are such that they come under the provisions of
I would therefore deny the writ as to all documents.
The petition of real party in interest for a rehearing was denied April 7, 1954. Carter, J., and Traynor, J., were of the opinion that the petition should be granted. Carter, J., filed the following opinion:
CARTER, J.—The petition for rehearing herein calls attention to the fact that the record does not disclose that the photographs in question were taken by an agent of the city. This is correct. The record does not disclose by whom the photographs were taken. It is alleged in the affidavits that the photographs were in the possession of counsel for the city but there is no showing whatsoever that the photographs
Since the decision in this case was filed my attention has been called to several authorities which support the ruling of the trial court here but which were not cited in any of the briefs. These authorities are Morehouse v. Morehouse, 136 Cal. 332 [68 P. 976], Freel v. Market St. Cable Ry. Co., 97 Cal. 40 [31 P. 730], Hirshfeld v. Dana, 193 Cal. 142 [223 P. 451], Cordi v. Garcia, 39 Cal.App.2d 189 [102 P.2d 820]. None of these authorities is cited in either the majority or dissenting opinions and were not considered by the court in the decision of this case.
In McKinley v. Southern Pac. Co., 80 Cal.App.2d 301, 314 [181 P.2d 899], the court said: “The next contention of appellants Southern Pacific Company and its employees is that the trial court erred in granting respondents’ motion to compel said appellants to produce written reports of the accident made by aрpellants Ahlborn and Shafer (the engineer and fireman) to their superior. Upon cross-examination of said appellants respondents brought out the fact that they had made written reports to B. E. Stone, their superior, and counsel for respondents thereupon demanded said statements and moved the court for an order requiring appellants to produce them, which motion was granted by the court over the objection of said appellants. Appellants concede that no prejudice resulted to them from said ruling but urge that it is a question of some importance and should be determined by this court. . . .
“In Morehouse v. Morehouse, 136 Cal. 332, 337 [68 P. 976], the court, quoting from Ex parte Clarke, 126 Cal. 235, 239 [58 P. 546, 77 Am.St.Rep. 176, 46 L.R.A. 835], said: ‘[W]hen a witness is in court . . . and discloses that he has a paper, document, or book which would be evidence in favor of the party desiring it, he may, in a proper case, be rightfully ordered to produce it.’ See, also, Freel v. Market St. Cable Ry. Co., 97 Cal. 40, 44 [31 P. 730]; Hirshfeld v. Dana, 193 Cal. 142, 153 [223 P. 451]; Cordi v. Garcia, 39 Cal.App.2d 189, 196 [102 P.2d 820]. And in the latter case
“Appellants assert that no showing was made in this case that anything in the requested statements was material to the issues in the instant case, but it is difficult to understand how written reports by the engineer and the fireman to their superior as to the details of the accident could fail to be material. Where the engineer and fireman were witnesses and testified as to such details, and in the course of such testimony stated that they had made such written reports, it was, in our opinion, clearly proper for the trial court to grant respondents’ motion to order appellants to produce said statements for respondents’ use in further cross-examination. If there were statements in said reports inconsistent with the testimony of the witnesses, respondents were entitled to use them for impeachment purposes, and if there were no inconsistent statements in said repоrts, no possible injury could result to appellants. A trial court must be depended upon to exercise a wise discretion in such matters to protect a party from any unnecessary disclosure to others of the contents of his private books, papers and records, but no party has a right to refuse to produce any report or document which may have a bearing upon the facts of the pending litigation.”
The decision in the McKinley case was rendered June 12th, 1947, and a hearing was denied by this court on August 7th, 1947. I respectfully submit that the majority holding in the case at bar is in direct conflict with all of the above cited authorities.