2009-00055473-CU-TT

Blue Diamond Growers vs. One Market Street Properties

Nature of Proceeding: Motion to Compel Further Responses to Discovery

Filed By: Abdelnour, Samir J.

Defendant Union Pacific Railroad’s (Union Pacific”) motion to compel a further
response to its Request for Production No. 10 is DENIED.

Background Facts/Procedure

This is an environmental clean-up case. Union Pacific’s Document Request No. 10 is
the subject of the motion. That request seeks

All DOCUMENTS relating to any proposed sale or transfer of the
PROPERTY (or portions thereof) to the Sacramento Municipal Utility
District, or any other third parties, including but not limited to evidence of
any due diligence performed as part of such proposed sale or transfer.

Union Pacific propounded Request No. 10 to Plaintiff Blue Diamond Growers (“BDG”)
on March 13, 2012. At that time, the disputed property was a 40-acre parcel.
However, as Request No. 10 suggests, there was a plan in the works for BDG to sell a
portion of the property to SMUD. The portion of the property that BDG sold to SMUD
became known as the “southern parcel.” BDG sold the southern parcel to SMUD
effective April 29, 2012. On October 3, 2013, the Honorable Alan G. Perkins entered
the parties’ stipulation that, although the southern parcel remained an appropriate
subject for discovery in this case, it was no longer a part of the “property” the
remediation costs of which are at issue.

On October 28, 2013, BDG served a supplemental response to Request No. 10 in which it indicated that it would produce non-privileged responsive documents. At the
time it served its supplemental response, BDG served a privilege log identifying e-
mails between it and its designated (but not yet deposed) expert Pat Galvin (“Galvin”).
The e-mails were created between November 2012 and September 2013.

In his capacity as expert witness, Galvin submitted a declaration on behalf of BDG in
opposition to a motion for summary judgment. Galvin’s declaration is dated June 11,
2012-several months before any of the subject e-mails were created. In his
declaration, Galvin testified with respect to remediation of the original 40-acre parcel.
(See Galvin Decl. [attached as Exh. 5 to the Abdelnour Decl.], ¶ 2.) He opined, among
other things, that there are elevated concentrations of arsenic and lead in debris
distributed throughout much of the property. (Galvin Decl., ¶ 4.) He also concluded
that soil removal was required before the property could be applied to commercial or
industrial use. (Id., ¶ 7.) He recommended soil removal in selected areas of the
property. (Id., ¶ 8.)

After Galvin submitted his declaration opposing summary judgment, he provided ash-
waste removal services in connection with BDG’s sale of the southern parcel. The
disputed e-mails concern Galvin’s advice to BDG’s counsel in conjunction with the
removal of ash waste-not arsenic or lead-from the southern parcel. (See Briggs Decl.,
¶ 5.)

Union Pacific argues that BDG must produce the e-mails between Galvin and BDG’
counsel now because Galvin submitted an expert declaration in the case and has been
designated an expert. Union Pacific further argues that Judge Perkins’ stipulated
order requires BDG to produce the e-mails.

BDG counters that it is not required to produce any of the e-mails until expert
discovery commences in May 2014. BDG further argues that, even after expert
discovery begins, it might be entitled to withhold some of the e-mails.

Discussion

Preliminarily, the court rejects Union Pacific’s argument that Judge Perkins’ stipulated
order of October 3, 2013 requires BDG to produce the disputed e-mails. Union Pacific
predicates this argument on the following language in the order:

The parties agree to open discovery for the following limited purpose: On
or before the expiration of thirty days from the date this stipulation is
executed by all parties. Plaintiff will provide a written response to and
produce non-privileged documents concerning the testing and
remediation of the Purchase Property and additional documents
concerning the purchase and sale of the [southern parcel] to SMUD to
the extent not already produced in response to Union Pacific Railroad’s
First, Second and Third Requests for Production of Documents served
on Plaintiff.

(See 10/03/13 Order [ Exh. 3 to Abdelnour Decl.], ¶ 5 [bracketed material and
emphasis added].) By its terms, however, Judge Perkins’ order only contemplates
production of non-privileged documents. Hence, Judge Perkins’ order does obviate
this court’s inquiry whether the e-mails are privileged. Generally speaking, confidential communications between an attorney and a
consulting expert are protected by the attorney-client privilege until and unless it
becomes reasonably clear that the expert will testify on the subject matter of the
th
consultation. (See DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4 671, 688,
691.) In addition, consulting experts’ reports made at an attorney’s request to prepare
for trial are work product entitled to conditional protection and are barred from
disclosure absent good cause. (Id. at 688.) On the other hand, neither the attorney-
client privilege nor the work product doctrine cover statements made to or by a non-
consulting, testifying expert. (Id. at 689.)

Where an expert wears hats as both a consultant and testifying witness, the attorney-
client privilege and work product protection largely evaporate once it becomes
th
reasonably clear that the expert will testify. (DeLuca, 217 Cal.App.4 at 690.) The
attorney-client privilege disappears because the client waives it by calling the expert as
a witness. (See National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d
476, 484.) Similarly, the expert’s statements about the subject matter of his/her
th
testimony are not longer protected work product. (DeLuca, 217 Cal.App.4 at 690.)
Advice rendered solely in an ”advisory capacity,” however, retains conditional work-
product protection. (Id.)

Turning first to the question whether the attorney-client privilege protects the e-mails
between Galvin and BDG’s counsel, the court’s focus is on the extent to which Galvin’s
expert testimony overlaps with the subject matter of the e-mails. As noted above, the
privilege otherwise protecting confidential communications between attorney and
expert consultant disappears on a theory of waiver: the client who elects to call an
expert to testify on matters that could only have been learned through the attorney-
client relationship consents to disclosure of the privileged information. (DeLuca, 217
th
Cal.App.4 at 689.)

BDG’s designation of Galvin as an expert did not waive the attorney-client privilege. (
th
Shooker v. Superior Court (2003) 111 Cal.App.4 923, 929-930.) Prior to the
designated expert’s deposition, the retaining party may withdraw the designation and
thus preserve the privilege. (Id. at 930.)

BDG’s submission of Galvin’s expert declaration in opposition to a summary judgment
motion in this case did not waive the attorney-client privilege covering the subject e-
mails either. The removal of ash waste from the southern parcel, which is the subject
of the e-mails, is not a subject of the declaration. Thus, the declaration does not
constitute a waiver of privileged communications relative to the removal of ash waste.
In other words, the e-mails remain protected by the attorney-client privilege, and the
motion to compel must be denied.

Because the court concludes that the attorney-client privilege currently protects the e-
mails from disclosure, it does not reach the issue whether the attorney work product
doctrine protects them from disclosure as well.

The court notes Union Pacific’s suggestion that the court review the e-mails in camera
to determine whether the attorney-client privilege applies to them. Although the court
could perform an in camera review if the only issue were the application of the work
product doctrine, it has no authority to conduct such a review where the attorney-client
privilege has been raised. (See Costco Wholesale Corp. v. Superior Court (2009) 47
Cal.4th 725, 736-737, 739 [citation omitted].) Consequently, the court denies any request for an in camera review.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.