Case Number: SC119665 Hearing Date: May 21, 2014 Dept: O

SC119665
FROMM v. KHAJAVI ET AL

Fromm’s Motion to Quash is denied. Fromm fails to establish that the records subpoenas at issue are irrelevant or unreasonable. Production is proper. Frommm fails to establish that the documents at issue, including those sought from his prior expert witness, Morgan Livingston, are protected by the attorney client privilege or work product doctrine.

ANALYSIS: Fromm moves to quash five depo subpoenas for production of business records. The subpoenas purportedly seek documents related to the prior litigation between Fromm and his former tenant, Say It in Russian.

Khajavi opposes on grounds that the depo subpoenas seek document relating to all repairs done to the property. Khajavi argues these documents are relevant because Fromm maintains the damage to the property were solely the result of Khavaji’s conduct. Thus, any possible preexisting damage resulting from a prior tenant is relevant.

Khajavi justifies the subpoenas as both relevant and proper in scope. The documents at issue relate to damage done to the property prior to Khajavi’s tenancy. Khajavi maintains the damage to the property alleged against him are attributable to the prior tenant. as such, the denouements are relevant to establishing one of Khajavi’s affirmative defenses.

The Court’s prior order denying Khajavi’s Motion to Compel Further Responses did not make a blanket finding that anything relating to Say It in Russian is irrelevant. Khajavii failed to establish good cause or to articulate the relevance of those particular RFPs. That was the extent of the Court’s prior findings on the issue. Here, Khajavi has explained more thoroughly the purposes of discovery regarding prior damages and repairs. Moreover, the document subpoenas are narrowly tailored to only cull documents reflecting the damages and repairs that were prompted by Say It in Russian’s tenancy.

With regard to Morgan Livingston’s document subpoena, Frommm also argues that the document sought are protected by the attorney-client privilege. Morgan Livingston was retained as an expert by Fromm in the prior action against Say It in Russian.

However, the attorney-client privilege only protects the work product of an expert who is retained solely as a consulting expert. See DeLuca v. State Fish Co. (2013)217 Cal.App.4th 671, 689. The attorney-client privilege generally does not apply once “a client calls that party’s attorney to testify at trial to information the attorney could have only learned through the attorney-client privilege,” as the privilege is waived. “Once a testifying expert is designated as a witness, the attorney-client privilege no longer applies, because the decision to use the expert as a witness manifests the client’s consent to disclosure of the information. Similarly, when an expert witness is expected to testify, the expert’s report, which was subject to the conditional work product protection, becomes discoverable, as the mere fact that the expert is expected to testify generally establishes good cause for its disclosure. Id. at 689.

As the party asserting the attorney-client privilege, Fromm bore the burden of establishing that Livingston’s work product is protected. Fromm’s attorney submits a declaration testifying on “information and belief” that From has retained Livingston as a consultant in these consolidated actions. See B.Pulmanova Decl. para. 7. The testimony lacks foundation. Moreover, Khajavi establishes that Livingston was an expert witness and a consultant, whose expert report was widely distributed to all counsel in the prior action against Say It in Russian. See Opposition, Decl. of G. Sepulveda-Sanchez, Para. 6,7.