2011-00106760-CU-PN

Robert Capps vs. Frank E Dougherty
Robert Capps vs. Frank E Dougherty

Nature of Proceeding:   Motion for Protective Order RE: Discovery of Non-Disclosed Expert

Filed By:  Kramer, Patricia

Plaintiff’s motion for protective order re: the permissible scope of his deposition as a
designated expert is GRANTED in part and DENIED in part.

In this legal malpractice action, plaintiff disclosed himself as a non-retained expert and
recently appeared for his expert deposition pursuant to defendant’s notice.  At that
deposition, plaintiff testified he intended to offer opinion testimony at trial and more
specifically, five different opinions relating to the real estate market and property which
he owned at the relevant times.  Both sides appear to agree that under Shooker v.
Superior Court (Winnick) (2003) 111 Cal.App.4th 923, plaintiff’s giving of expert
testimony at this deposition constitutes at least a partial waiver of the attorney-client
privilege and work product protection.  The questions presented here are (1) what is
the extent of this waiver and (2) what, if any, communications/material remains
protected as attorney-client communications and work product.

At the outset, the Court must remind both counsel but particularly moving counsel that
given the number of motions such as this which must be addressed on a daily basis,
there are simply not enough judicial resources available to resolve each and every
discovery dispute that could have and should have been resolved informally.  This
serves to highlight the critical need for counsel’s legitimate, reasonable and good faith
meet-and-confer efforts before filing any discovery motion.  Although it dealt with a
motion to compel answers to deposition questions, the decision of Townsend v.
Superior Court (1998) 61 Cal.App.4th 1431 is instructive in that it clarifies that the meet
-and-confer process is not intended to be some perfunctory formality but rather it
“requires…a serious effort at negotiation and informal resolution.” (Id., at 1438.)
Nevertheless, the Court will address the questions presented here at the expense of
other matters on the calendar.

This Court holds that by giving expert testimony during his recent expert deposition
plaintiff did indeed trigger at least some waiver of the protection otherwise afforded to
attorney-client communications and work product. (Shooker, at 930.)  Unlike the facts
in Shooker where the plaintiff who was initially disclosed as an expert withdrew this
designation before his deposition testimony disclosed “a significant part” of any
privileged matter, plaintiff in the present case clearly expressed his intent to offer
expert testimony at trial and then began to testify about his opinions relating to various
aspects of real estate.

The Court agrees with the parties that Shooker nowhere addresses the question of the
scope of the waiver resulting from a party offering expert testimony.  While plaintiff
seems to suggest that the resulting waiver of the attorney-client privilege and work
product protection is somehow limited to only the expert opinions themselves (Mov.
Memo. P&A, p.6:20-22), the moving papers cite no legal authority whatsoever for
plaintiff’s assertion.  In fact, except for a reference to Code of Civil Procedure
§2025.420 relating to protective orders for depositions, the only specific legal authority
cited in the moving papers is the Shooker decision.  However, as noted above,
Shooker does not address the more narrow question presented here relating to the
scope of the waiver of privilege and work product protection.  Because plaintiff’s
moving papers fail to identify any legal basis for this Court to issue the requested
protective order, the present motion could certainly be denied outright.  (Although
plaintiff cites some authority for his position in the reply papers, such belated argument
effectively deprives defendant of due process inasmuch as the latter had no
meaningful opportunity to respond and is therefore disregarded here.)

Nevertheless, this Court is persuaded that plaintiff’s expert deposition testimony
effects a waiver only as to those protections otherwise afforded to any and all attorney-
client communications and/or work product which relates in any way to the testimony
which plaintiff gives at his deposition or intends to offer at trial.  In short, defendant is
entitled to explore the full scope of the “subject matter” of each expert opinion offered
by plaintiff, as well as its basis.  On the other hand, any protected material which is not
related to the subject matter or basis of plaintiff’s actual or intended testimony (e.g.,
communications/research on case strategy/analysis) shall remain protected under the
applicable attorney-client privilege and/or work product doctrine.

In closing, the Court notes that the foregoing does not and cannot create a bright line
rule to guide the parties for the remainder of the expert deposition particularly since the
scope of relief sought by plaintiff remains somewhat unclear.  Still, this ruling should
provide sufficient guidance to the parties who will be expected to meet-and-confer in
good faith, consistent with the foregoing and the standard set forth in  Townsend,
before resorting to any further law and motion.

This minute order is effective immediately.  No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)