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Brown v. Superior Court (Jack C. Foley)

California Court of Appeals, Third District
May 2, 1963
30 Cal. Rptr. 338 (Cal. Ct. App. 1963)

Opinion

For Opinion on Rehearing, see 32 Cal.Rptr. 527.

A. John Merlo, Chico, for petitioner.

Raymond A. Leonard, Oroville, Peart, Baraty & Hassard, San Francisco, for real party in interest.


PIERCE, Presiding Justice.

Petitioner is plaintiff in a malpractice action. She served interrogatories on the doctor-defendant real party in interest pursuant to Code of Civil Procedure section 2030 and designated also Raymond. A. Leonard, defendant's attorney, as one of the persons to answer said interrogatories. Defendant moved to quash. The grounds were that the interrogatories called for The writ petitioned for here is an appropriate procedure to test the trial court's rulings and we issued an order to show cause for the reason that the questions have novelty. (Oceanside Union School District v. Superior Court, 58 Cal.2d 180, 185, note 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

The petition alleges:

'* * * The questions quashed concerned what occurred at a Butte County Medical meeting, and the answers thereto are necessary so that Plaintiff can adequately cross-examine Dr. Jack C. Foley and also learn the opinion of the experts who heard the facts as presented by Dr. Foley. It is almost impossible for Plaintiff to obtain expert testimony in any other manner because of the notorious declination of one medical doctor to testify against another.'

The petition has attached to it the memorandum of the trial court and the interrogatories in question. It does not contain the evidence before the trial court when the motion was heard. From the memorandum, however, it appears that this evidence consisted of the affidavit of Raymond A. Leonard, attorney for defendant, and that no counteraffidavit was filed by petitioner. Leonard's affidavit is before us and part of it is referred to in the trial court's memorandum. Since it was the obligation of petitioner to bring up all portions of the record on which he relies (3 Witkin Calif.Proc., Extraordinary Writs, sec. 56, p. 2545), we assume in this opinion that the affidavit and the court's memorandum fairly disclose all evidence relevant to the issues raised by the portion of the petition above quoted.

From the affidavit and the memorandum filed by the trial court we learn that the meeting mentioned in the petition had the origin and purpose as follows:

A policy of malpractice insurance insuring defendant physician, himself a member of the Butte County Medical Society, was issued under a master plan covering said members, or some of them, generally. The insurer, by the terms of the plan, furnished an attorney to represent the insured doctor in connection with any claim or suit for malpractice. The society, also by the policy terms, was required to name a committee of doctors. When a suit was filed it was the function of said committee to meet with the insured doctor and his attorney, to hear the former's version of the litigated accident, to interrogate him, review the other evidence, discuss, advise, and make recommendations to the attorney, thus assisting him in an understanding of the case, in evaluating it for settlement, and in preparation for trial.

At the meeting held in this case said attorney was present, also a representative of the insurance company. The members of the doctor's committee were present. The memorandum of the trial judge indicates that 'perhaps nurses [were] in attendance' and from the interrogatories propounded it may be gathered that plaintiff may have been present, and others, at least part of the time. The memorandum states '[t]hat information was furnished to said committee from the confidential reports of the investigator for said insurance company and from the statements of Dr. Foley acquired pursuant to the provisions of the policy. Further, that Dr. Foley was present for a short time to explain and further expand on the information in his report to the insurance company and his attorney and to answer questions in connection therewith. * * * That after the medical society meeting all information adduced at said meeting was turned over and delivered to There were 56 interrogatories proposed. The court ordered defendant to answer questions 1-16, 20-30, 50-56, and that portion of the order is not challenged by defendant. Since these proceedings were instituted, he has also stipulated that certain questions not ordered by the court to be answered will be answered. These are questions 36, 38, 45 and 46. Questions 1-16 relate to matters other than the transactions during the meeting in question. Questions 20-30 relate to the time, date, names, residences and professional addresses of the doctors present; also their specialties, if any. Questions 36, 38, 45 and 46 seek the names of lay persons present. Questions 50-56 seek information as to whether plaintiff herself was present and whether she gave a statement; if so, its whereabouts.

The questions to which defendant's objections were sustained, 17-19 and 31-49 (excepting those above noted), relate to the substance of the 'decision of this grievance committee,' what the several members thereof stated, what they recommended--including a possibly recommended settlement figure--how the vote stood on such recommendations, and whether the statements at the hearing were reported, taped or otherwise recorded.

As stated above the motion to quash was based upon two contentions: (1) that the subject matter was protected under the attorney-client privilege; (2) that it was non-discoverable under the 'work-product' rule.

In discussing the questions raised by these contentions some preliminary observations seem necessary. These relate to one public policy favoring discovery and one, sometimes two, countervailing public policies which restrict discovery. These opposing policies are usually at least a background accompaniment to a consideration of these discovery problems. The first is the public policy, a modern one, which prompted the Legislature to design the new discovery procedures of the Code of Civil Procedure in sections 2016-2035 based upon the Federal Rules (which were expanded). This policy is expounded with elaboration in California in the 'pilot' case of Greyhound Corporation v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266, stating that the procedures were designed both to streamline and take the "game' element' out of trial preparation; to prevent surprise at trial; but without intent to destroy the general adversary nature of litigation. Greyhound on page 377, 15 Cal.Rptr. on page 99, 364 P.2d on page 275 quotes from Professor Louisell, "* * * a law suit should be an intensive search for the truth, not a game to be determined in outcome by considerations of tactics and surprise. * * * [but there is] nothing in these rules at odds with the fundamentals of the common law method of adversary adjudication. There is nothing in these rules to suggest a retreat from the common law's hard-headed conception of litigation as adversary and competitive, and from its historic notion that a struggle--warfare, if you will--between vitally interested partisans, is most apt to expose the truth."

The second public policy is that which justifies the attorney-client privilege. It is described by Justice Traynor in City and County of San Francisco v. Superior Court, 37 Cal.2d 227, at page 235, 231 P.2d 26, at page 30 of 25 A.L.R.2d 1418. It is said to be a privilege founded upon a 'belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.'

And the court states (on p. 235, 231 P.2d on p. 30):

'* * * Adequate legal representation in the ascertainment and enforcement of rights or the prosecution or defense of litigation compels a full disclosure of the facts by the client to his attorney.'

It is also said that a lawyer's advice will be useless and perhaps misleading if the client withholds any of the facts and that he is likely to do so (especially if he deems the

"* * * [T]he absence of the privilege would convert the attorney habitually and inevitably into a mere informer for the benefit of the opponent."

The rationale of the privilege is expressed by Professor Jack H. Friedenthal in 'Discovery and Use of an Adverse Party's Expert Information,' 14 Stanford Law Review, 455, as follows:

'The justification for the attorney-client privilege must be the desire to obviate an individual's fear that his communications to an attorney, if made public, would adversely affect the outcome of litigation in which he has an interest, or would so embarrass him that he would forego legal counsel rather than suffer the consequent humiliation.'

The policy, or perhaps it may be better described as the principle, which underlies the protection of the 'work product' rule, has been variously described. It has been said that an attorney, to do his work effectively must be free from fear that his private papers, investigative labors and research and thoughts as a result of such research, will be subject to scrutiny at the will of the opposing side. (Friedenthal, supra, p. 470, discussing the rule of Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451.)

A third principle, perhaps not strictly a 'work product' rule but a rule of 'fairness,' is that unlimited discovery by an adverse party of information in the hands of the attorney for a litigant, would promote laziness, a result not calculated to further, but to impede the search for truth which, under the common law concept, is the designed aim of the trial of a law suit (see Friedenthal, supra, p. 479).

In our consideration of the attorney-client privilege and before testing its application by a consideration of the facts present here some further generalizations are pertinent:

California rules declaring communications between attorney and client to be privileged (Code Civ.Proc., sec. 1881, par. 2) were not changed by the new discovery legislation. (Code Civ.Proc., secs. 2016, subd. (b), and 2030, subd. (b); Greyhound, supra, 56 Cal.2d p. 370, 15 Cal.Rptr. p. 95, 364 P.2d 271.) '[T]he privilege is to be strictly construed in the interest of bringing to light relevant facts.' (People ex rel. Dept. of Public Works v. Donovan, 57 Cal.2d 346, 354, 19 Cal.Rptr. 473, 477, 369 P.2d 1, 4.) Regarding interrogatories generally it is to be observed that their allowance as a part of the discovery procedure (in Code Civ.Proc., sec. 2030) is a new concept. ,(Greyhound, supra, p. 373, 15 Cal.Rptr. p. 97, 364 P.2d p. 273.) Where interrogatories are sought the party seeking them does not first have to establish good cause; and the party seeking to establish the privilege has the burden of proof. (Coy v. Superior Court, 58 Cal.2d 210, 220-221, 23 Cal.Rptr. 393, 373 P.2d 457.)

Counsel for defendant, contending that the attorney-client privilege applies here, urges that the members of the committee of doctors present met with the client and with the attorney for the purpose of 'interpreting' the communications of the client to the attorney; that they were not only his agents but were the 'conduits' through which the client's statements were made intelligible to the attorney. Reliance is upon City and County, supra, where a physician had been employed by plaintiff's attorneys in a personal injury action, to examine the plaintiff and to report to and advise the attorney so that he could evaluate the case for settlement or preparation for trial. This doctor had not treated the plaintiff at any time. The doctor's deposition was taken at which defendant's attorney sought to learn the results of the examination and the doctor's opinion as to her condition. It There are several points of dissimilarity between this case and City and County, supra, which in our opinion prevent its application.

Of these dissimilarities the one most note-worthy rests in the fact that the committee of doctors was called together not principally to discuss and consider the doctor-defendant's 'communications' (plaintiff was present at the meeting only briefly); nor was the committee to consider only the statement of the case contained in said defendant's report. It was actually called to consider all of the evidence in the case, and after this study its members were to express their individual opinions and conclusions to the lawyer. It is to be pointed out, moreover, that even as to the defendant's disclosures, although his communication thereof to his attorney would ordinarily be within the attorney-client privilege the facts therein related by him were not privileged. What the doctor had done, or omitted to do, the history taken from the patient, the doctor's diagnosis, his treatment, his prognosis, etc., were all 'open' information obtainable by plaintiff by deposition, interrogatories or requests for admissions; so that all matters before the committee of doctors which could have had any basis for their opinions were not private but discoverable. Their opinions and conclusions, therefore, would be discoverable not only under Professor Friedenthal's reasoning, but under the rules announced in: Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122, 3 Cal.Rptr. 621, 86 A.L.R.2d 129 (an expert's opinion regarding the condition of slipperiness of a sidewalk); People ex rel. Dept. of Public Works v. Donovan, supra; Oceanside, supra; in that portion of an opinion of this court in Mowry v. Superior Court, 202 Cal.App.2d 229, 20 Cal.Rptr. 698, approved in Oceanside, 58 Cal.2d at p. 190, 23 Cal.Rptr. at p. 381, 373 P.2d at p. 445 (expert appraiser's opinion re value of property being taken in eminent domain); and San Diego Professional Association v. Superior Court, 58 Cal.2d 194, 23 Cal.Rptr. 384, 373 P.2d 448 (an engineer's report based upon an examination of plans). The doctors on the committee, therefore, were not mere 'interpreters' of a client's communication to his attorney. Interpretation was but a small part of their function.

In the article of Professor Friedenthal, supra, the author states (on p. 469):

'* * * [I]t should be clear that the attorney-client privilege should be applied only to protect communications, not facts. Experts' reports are communications which may fall within the scope of the privilege. But the experts' observations and conclusions themselves, whether or not contained within a report, and even if based to some extent on communications of the client, are facts which, if relevant, constitute evidence. Therefore, to apply the privilege to prevent an expert from testifying as to his analysis may completely preclude disclosure of evidence and thus be tantamount to the suppression of an eyewitness. Although in a situation where the party will call his expert as a witness it would seem highly undesirable that the adverse party be barred from pretrial discovery of the expert's analysis, there are other circumstances when discovery or use at trial of such information by the adverse party would be extremely unfair. To the extent that protection is needed in these latter situations, it can be obtained by limiting the extent of disclosure permitted without a prior showing of good cause. It seems clear that the blanket protection of the attorney-client privilege is unwarranted.' (Emphasis added.)

There is another fact in this case distinguishing it from City and County, supra. Defendant was not a layman whose statements needed interpretation by others with scientific knowledge to make them intelligible to his attorney. He was himself a Suezaki v. Superior Court,

'The matter is privileged if the agent is required to communicate to the attorney something from the client which the latter is unable to communicate himself, or where the communication can better be transmitted through a specialist.' (Latter emphasis added.)

And the same jurist says in Oceanside, supra, 58 Cal.2d page 188, 23 Cal.Rptr. page 380, 373 P.2d page 438:

'As is pointed out in the Suezaki opinion, there are certainly some instances where the expert's report does constitute a 'communication' from client to attorney. Such is true where the expert is required to examine the client, his personal affairs or property, or his mental impressions, in order to evaluate and transmit the same in a manner in which the client is unable by reason of insufficient scientific or technical training.'

We have concluded, therefore, that the information sought in the interrogatories proposed by petitioner is not protected under the attorney-client privilege.

The trial court, however, excluded discovery of this information not solely upon this ground but also under the 'work product' rule. This rule, if it did not have its genesis, at least had its most widely disseminated articulation, in Hickman v. Taylor, supra. In Hickman it was held that statements of witnesses in an attorney's possession and obtained by him or through his efforts were nondiscoverable at least when such witnesses were available for interrogation by the party seeking discovery. We have stated the rationale of the rule above.

Recent opinions by our Supreme Court have asserted that the 'work product' rule, although inapplicable under the facts of Greyhound, supra, had not been abrogated by that decision, but, on the contrary, is a part of California law in a proper case. In Suezaki, supra, 58 Cal.2d at page 177, 23 Cal.Rptr. at page 374, 373 P.2d at page 438, it is stated that films caused to be taken by an investigator at an attorney's instance are the result of the 'work product' of the attorney but not, on that account, privileged as a matter of law. In that case it is stated (on p. 178, 23 Cal.Rptr. on p. 375, 373 P.2d on p. 439):

'* * * [U]nder the California rule, the trial court may consider the facts on which a claim of 'work product' is predicated, and exercise the discretion granted by the provisions of the discovery statutes in order to prevent abuse and to reach a determination consistent with equity and justice. This simply means that in California the fact that the material sought to be discovered is the 'work product' of the attorney is one factor to be used by the trial court in the exercise of its discretion in determining whether or not discovery should be granted.'

Justice Peters also points out that Hickman 'stressed the fact that the discovery there sought would be tantamount to compelling the attorney to become a witness.' This same thought is expressed by Professor Friedenthal in his article, supra (at p. 741) in commenting upon the concurring opinion of Justice Jackson in Hickman where that jurist had 'indicated grave doubts whether there could ever be sufficient cause to require the attorney to set forth such oral communications.' The author further states: 'Not only would such statements tend to be unreliable, since they would be colored by the attorney's legal opinions, but the attorney would be put in the very undesirable and demoralizing position of creating evidence which could be used to impeach his own witness, which might in turn force the lawyer to explain it on the witness stand.'

We think the trial court here could not perceive, nor can we, any justification to put the attorney in this position by the propounding of interrogatories. Obviously,

These matters a court may take into consideration in weighing the pros and cons of permitting discovery on an expert's opinions and reports in the exercise of a sound discretion under the 'work product' rule.

The information sought here from the attorney by interrogatories is not materially different from that sought by deposition in Trade Center Properties, Inc. v. Superior Court, 185 Cal.App.2d 409, on p. 411, 8 Cal.Rptr. 345, on p. 347, where it was said:

'What petitioner here seeks is the right to take the deposition of his adversary's attorney upon matters pertaining to the latter's preparation for trial. Whether to protect the work product of that attorney or to restrict the picking of his brains, the court clearly should bar such a proceeding except upon a showing of extremely good cause. * * * Lacking strong elements of good cause, it would seem an abuse of discretion for the trial court to refuse an order that the deposition not be taken.'

It is to be recognized, of course, that where discovery is denied under the qualified privilege of 'work product' such denial must be in the valid exercise of discretion 'in order to prevent abuse and to reach a determination consistent with equity and justice.' (Suezaki, supra, 58 Cal.2d p. 178, 23 Cal.Rptr. p. 374, 373 P.2d p. 438.) Where discovery is sought by a motion for inspection the party seeking discovery must show 'good cause.' But, as stated above, where discovery is sought by interrogatories the party seeking them does not have to show good cause. The burden is on the party claiming the privilege of 'work product' to show that which establishes it. Here the portion of the affidavit supporting defendant's motion to quash set forth in the judge's memorandum sufficiently meets the burden and the memorandum itself establishes that the court exercised a sound discretion in determining that denial of discovery here is necessary to prevent abuse and is consistent with equity and justice.

The trial court's memorandum here also indicates it undoubtedly considered the salutary purpose of the activities of the medical society's 'grievance committee.' It is a body designed and calculated to assist in the settlement of malpractice suits and to effect such settlement with a minimum of publicity--which publicity is, as a matter of common knowledge, so devastatingly The order to show cause and the stay order heretofore issued are discharged and the writ of mandate is denied.

SCHOTTKY and FRIEDMAN, JJ., concur.


Summaries of

Brown v. Superior Court (Jack C. Foley)

California Court of Appeals, Third District
May 2, 1963
30 Cal. Rptr. 338 (Cal. Ct. App. 1963)
Case details for

Brown v. Superior Court (Jack C. Foley)

Case Details

Full title:Dollie M. BROWN, Petitioner, v. SUPERIOR COURT of the State of California…

Court:California Court of Appeals, Third District

Date published: May 2, 1963

Citations

30 Cal. Rptr. 338 (Cal. Ct. App. 1963)