Michael Hager v. National Semiconductor Corporation		CASE NO. 110CV188671
DATE: 5 September 2014	TIME: 9:00	LINE NUMBER: 2

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Thursday 4 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 5 September 2014, the motion of non-party Jeffrey Lawson to quash the subpoena and notice of deposition issued to him by plaintiff Michael Hager (“Plaintiff”) or, in the alternative, for a protective order was argued and submitted.  Plaintiff filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).[1]

Statement of Facts

Plaintiff was born in 1965 with severe birth defects, including mental retardation, skeletal and limb deformation, severely impaired circulation, and chromosomal abnormalities.  Prior to Plaintiff’s birth, his mother worked at the Fairchild Semiconductor facility in Mountain View.  Defendant National Semiconductor Corporation (“Defendant”) is the successor in interest of Fairchild Corporation (“Fairchild”), which owned and operated the facility where Plaintiff’s mother was employed.

According to the allegations of the complaint, during her employment with Fairchild, Plaintiff’s mother worked in a “clean room” where she was exposed to numerous teratogenic, genotoxic, and reproductively toxic chemicals. Plaintiff alleges that these chemicals were a direct and proximate cause of his birth defects. Plaintiff claims that the owners of Fairchild knew or should have known of the potential harm that could result from exposure to the chemicals Plaintiff’s mother was exposed to during her employment with the company and failed to take adequate steps to protect its workers. Plaintiff further alleges that he and his family were unaware of the cause of his birth defects until December of 2008, when Plaintiff’s mother learned of attorneys that were investigating the link between birth defects and chemicals used in the semiconductor industry.

Based upon these allegations, Plaintiff instituted this action against Defendant (as Fairchild’s successor in interest) in December of 2010, raising claims for negligence, ultra hazardous activity liability, willful misconduct, fraud, premises liability, and strict products liability.

Discovery Dispute

On 11 March 2014, Defendant took the deposition of Paul Hager (“Mr. Hager”), Plaintiff’s 85-year-old father.  Plaintiff’s counsel was present at the deposition, along with attorney Marc Katz (“Mr. Katz”)—representing Defendant—and attorney Jeffrey Lawson (“Mr. Lawson”)—representing Mr. Hager.

During the deposition, it became clear that, in March of 2013, Defendant retained private investigator Nichols Smith (“Mr. Smith”) to locate and interview Mr. Hager, and that Mr. Hager and Mr. Smith met on multiple occasions.  As a result of the meetings with Mr. Smith, Mr. Hager signed two declarations under the penalty of perjury indicating that Mr. Hager and Plaintiff’s mother were aware that Plaintiff’s developmental problems might be related to Plaintiff’s mother’s exposure to chemicals while working at Fairchild as early as the late 1960’s.  Mr. Hager corroborated the statements in his declarations at his deposition, indicating that the statements were true when he made the declarations and continued to be true at the time of the deposition.  In addition, at the deposition it became clear that Mr. Lawson was, to some extent, associated with Defendant’s counsel.

Subsequently, Plaintiff learned that Defendant paid Mr. Lawson’s attorney’s fees in connection with Mr. Hager’s representation at his deposition.  Mr. Hager then terminated Mr. Lawson’s representation of him and retained Plaintiff’s counsel as his attorney.

On 28 April 2014, Mr. Hager sent a letter to the deposition officer rejecting his deposition transcript.  In the letter, Mr. Hager indicated he was unaware that Mr. Lawson’s fees were being paid by Defendant and stated that he would have sought other counsel had he known the same.

Plaintiff then filed a motion to suppress Mr. Hager’s 11 March 2014 deposition transcript, asserting that Mr. Hager’s deposition should be suppressed because Mr. Lawson committed numerous ethical violations.  The Court denied Plaintiff’s motion without prejudice on 19 June 2014, indicating that the motion was not procedurally proper, Plaintiff did not establish that an ethical violation had occurred, and Plaintiff did not demonstrate that Mr. Hager’s deposition testimony would have been any different in the absence of the alleged violation.

On 27 June 2014, Plaintiff issued a deposition subpoena to Mr. Lawson, setting Mr. Lawson’s deposition for 30 July 2014, and demanding that Mr. Lawson produce at deposition his “entire file on Paul Hager, including but not limited to all electronic and written recordings, documents, agreements, and communications related to [his] representation of Paul Hager, including those exchanged between [him] and Mr. Hager, and exchanged between [him] and Mark Katz, his representatives, and/or his law firm as they relate to Paul Hager.”  (See Lerch Dec., ¶ 4, Ex. A.)

Mr. Lawson’s counsel contacted Plaintiff’s counsel via telephone and email to meet and confer regarding Mr. Lawson’s deposition and advised that Mr. Lawson intended to file a motion for protective order and/or motion to quash his deposition.  Mr. Lawson’s counsel asserted that Mr. Lawson could not “be called as a witness to testify truthfully, potentially before a jury, against the now stated interests of Mr. Hager, his former client,” as “Mr. Lawson’s testimony will be adverse to the allegations that are made by Mr. Hager.”  (See Lerch Dec., ¶ 7, Ex. C.)   Plaintiff’s counsel responded to Mr. Lawson’s counsel’s meet and confer correspondence, indicating that he disagreed with Mr. Lawson’s position and Mr. Lawson should proceed with his motion.  (See id.)

On 25 July 2014, Mr. Lawson filed the instant motion to quash the deposition subpoena issued to him or, in the alternative, for a protective order.  Plaintiff filed papers in opposition to the motion on 22 August 2014.  On 28 August 2014, Mr. Lawson filed a reply.  On the same date, Defendant filed a statement of non-opposition to the instant motion.

Discussion

Pursuant to Code of Civil Procedure section 1987.1, subdivision (a), Mr. Lawson moves to quash the deposition subpoena issued to him in its entirety or, in the alternative, for a protective order providing that Plaintiff’s counsel is not allowed to examine him about his mental impressions.[2]

I.             Legal Standard

The court may, “upon motion reasonably made by a [party] … make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.”  (Code Civ. Proc., § 1987.1, subds. (a) and (b)(1).)  In addition, the court may make “any other order as may be appropriate to protect the [moving party] from unreasonable demands.”  (Code Civ. Proc., § 1987.1, subd. (a).)

II.            Mr.  Lawson’s Ethical Duties under California Rules of Professional Conduct, rules 3-300, 3-310, and 5-210

Mr. Lawson argues that the Court should quash the deposition subpoena in its entirety because it unreasonably demands that he violate his ethical duties owed to Mr. Hager under California Rules of Professional Conduct, rules 3-300, 3-310, and 5-210.

With respect to California Rules of Professional Conduct, rules 3-300 and 3-310, Mr. Lawson asserts that he “must avoid interests that are adverse to a client and avoid the representation of interests adverse to a client or former client.”  (Mem. Ps & As., p. 4:6-8.)  Mr. Lawson states that he is being subpoenaed to give testimony that Plaintiff will “presumably attempt to use to discredit the previous testimony that [Mr. Hager] gave in deposition” and he “cannot reasonably be asked to give testimony that could be used to discredit the testimony of his former client in the same legal proceeding” as it “puts [him] in a position adverse to his former client’s interests in violation of the Rules of Professional Conduct 3-300 and 3-310 and his duty of loyalty.”  (Mem. Ps & As., p. 4:10-16.)

With respect to California Rules of Professional Conduct, rule 5-210, Mr. Lawson asserts that he cannot act as an advocate before a jury which could potentially hear testimony from him.  Mr. Lawson further asserts were he to testify it would be a violation of that rule because “[he] has already acted as an advocate in this matter by way of his representation of [Mr. Hager] at [Mr. Hager’s] deposition” and “[he] cannot now be reasonably asked to violate his ethical obligations by providing testimony in the same action.”  (Mem. Ps & As., p. 4:16-24.)

Mr. Lawson also argues that “[Mr. Hager] has never given his informed written consent to allow [him] to testify in this matter” and “under the Yanez decision …, in this situation informed written consent by [Mr. Hager] would not cure the prohibition enunciated” in the California Rules of Professional Conduct cited above.  (Mem. Ps & As., p. 4:20-24.)  In his reply, Mr. Lawson argues that even assuming arguendo that Mr. Hager was properly informed and gave a knowing waiver … the alleged waiver fails to address whether Mr. Hager was fully informed and consented to [him] giving testimony that is potentially adverse to Mr. Hager’s interest and the conflict this creates.”  (Reply, p. 2:27-28, 3:1-3.)

Conversely, Plaintiff argues that Mr. Lawson’s deposition will not conflict with his duty of loyalty to Mr. Hager or violate any rule of professional conduct because “Mr. Hager has made abundantly clear that his interest in this proceeding is ‘one in the same’ with his son’s interests.”  (Opp’n., p. 4:21-23.)  Plaintiff contends that “[s]ince [Mr. Lawson’s] severely conflicted representation facilitated testimony fatal to Mr. Hagar’s interests, Mr. Hagar now has an interest in seeing [Mr. Lawson] deposed so that the jury can understand the improper and distorting influence that [Mr. Lawson’s] representation had on Mr. Hager’s testimony at his deposition.”  (Opp’n., p. 4:25-27, 5:1-2.)

Plaintiff also contends that even if Mr. Lawson’s deposition testimony could discredit Mr. Hager’s testimony, any conflict of interest is cured by Mr. Hager’s written consent to the same.  Plaintiff states that Mr. Hager signed a declaration on 15 July 2014, stating that he “authorize[s] Jeff Lawson to testify about all matters relating to this case, including those protected by attorney client privilege” and he “waive[s] any and all attorney client privileges and protections relating to Jeff Lawson’s representation of me at any time, including before, during, and after my March 11, 2014 deposition.”  (Peebles Dec., Ex. C.)  Plaintiff also states that Yanez v. Plummer (“Yanez”) (2013) 221 Cal. App. 4th 180, cited by Mr. Lawson, is inapposite and does not stand for the proposition that Mr. Hager’s informed written consent is insufficient to overcome any potential conflict of interest.

The Court finds that the ethical obligations that Mr. Lawson owes to Mr. Hager under California Rules of Professional Conduct, rules 3-300, 3-310, and 5-210 do not prohibit him from testifying in this matter.

First, California Rules of Professional Conduct, rule 3-330, entitled “Avoiding Interests Adverse to a Client,” provides that an attorney shall not enter into a business transaction with a client or knowingly acquire a pecuniary interest adverse to a client unless several requirements have been satisfied.  Here, Mr. Lawson is not entering into a business transaction or knowingly acquiring a pecuniary interest adverse to Mr. Hager.  Therefore, California Rules of Professional Conduct, rule 3-330 does not prohibit Mr. Lawson from testifying in this case.

Second, California Rules of Professional Conduct, rule 3-310, entitled “Avoiding the Representation of Adverse Interests,” provides that an attorney shall not accept or continue representation of a client without providing written disclosure to and/or obtaining informed written consent from the client when the attorney has relationships or interests that are adverse to the client’s interests.  (See Cal. Rules Prof. Conduct, rule 30-310.)  Here, Mr. Lawson no longer represents Mr. Hager and is not attempting to represent interests that are adverse to Mr. Hager’s.  Moreover, California Rules of Professional Conduct, rule 3-310 does not prohibit an attorney from testifying as a witness in matter in which he also represented a client and, thus, does not prevent Mr. Lawson from testifying in this case.

Third, California Rules of Professional Conduct, rule 5-210 provides that an attorney “shall not act as an advocate before a jury which will hear testimony from the member unless:  (A) [t]he testimony relates to an uncontested matter; or (B) [t]he testimony relates to the nature and value of legal services rendered in the case; or (C) [t]he member has the informed, written consent of the client.”  The policy behind this rule is to protect the interests of the client—as a lawyer who acts as both an attorney and witness may diminish his or her potential effectiveness in both capacities—and to protect the judicial process and the administration of justice.  (See Reynolds v. Super. Ct. (1986) 177 Cal.App.3d 1021 [petitioner challenged the disqualification of her attorney and the court found that if a party is willing to accept less effective counsel because of the attorney’s testifying, neither his opponent nor the trial court should be able to deny this choice to the party without a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process]; see also Witkin, Cal. Evid. (4th Ed., 2000) 2 Witnesses § 54 [when an attorney is called to testify for his or her client, the approved practice is to leave the trial to other counsel, to avoid the appearance of being paid a professional fee for favorable testimony].)

Here, California Rules of Professional Conduct, rule 5-210 does not apply as Mr. Lawson is no longer Mr. Hager’s counsel and there is no evidence that Mr. Lawson intends to or is expected to act as an advocate before a jury in this case.  In addition, the policies behind this rule would not be furthered by quashing the subpoena to Mr. Lawson as there is no concern that Mr. Lawson would be less effective as counsel—as he is no longer Mr. Hager’s attorney—or that the judicial process would be impugned—as there is no assertion that Mr. Lawson is receiving a fee from Plaintiff for favorable testimony.  Moreover, in his 15 July 2014 declaration, Mr. Hager expressly consented to Mr. Lawson giving testimony about his representation of Mr. Hager in this matter.

Finally, the case of Yanez v. Plummer (“Yanez”) (2013) 221 Cal. App. 4th 180 is inapplicable to the instant case.  In Yanez, the plaintiff brought an action for legal malpractice alleging that the defendant attorney violated numerous ethical duties, including the attorney’s duty to obtain the plaintiff’s informed written consent to represent a party with adverse interests to his own.  (See id. at p. 183.)  On appeal, the Court of Appeal reviewed the trial court’s decision on a motion for summary judgment.  (Id.)  The Court of Appeal held that the plaintiff had “presented a triable issue of material fact that but for [the attorney’s] alleged malpractice, breach of fiduciary duty and fraud, [the plaintiff] would not have” suffered the damages alleged.  (Id at p. 189.)  The Court of Appeal did not find that, had the attorney obtained informed written consent, it would have been sufficient to cure the conflict of interest.  (Id.)

III.           Alternative Means to Obtain the Information Sought

Mr. Lawson argues that cases which address “the problem of the attorney advocate testifying as a witness in the same action require the Court to look at whether the same testimony can be obtained from a source other than the lawyer,” citing Smith, Smith & Kring v. Super. Ct. (“Smith”) (1997) 60 Cal.App.4th 573.  (Reply, p. 1:27-28, 2:1.)  Mr. Lawson points out that Plaintiff asserts that his testimony is necessary to “understand the distorting effects that [his] conflicted representation of Mr. Hager may have produced on Mr. Hager’s deposition testimony.”  (Reply, p. 2:2-5.)  Mr. Lawson argues that Mr. Hager has not identified any deposition testimony that he gave that was untruthful and Mr. Hager alone can testify as to the effect that his representation had on Mr. Hager’s deposition testimony.  Mr. Lawson contends that Mr. Hager can testify to what he told Mr. Hager, what advice he gave to Mr. Hager, and what impact his representation had on Mr. Hager’s testimony.

Contrary to Mr. Lawson’s assertion, Smith does not apply to the instant case or stand for the proposition that the Court must consider whether the information sought may be obtained through alternative means.

In Smith, the plaintiff had filed and settled a previous action for personal injuries arising out of an automobile accident.  (See id. at p. 576.)  The plaintiff subsequently sued his former attorneys, asserting causes of action for fraud and legal malpractice.  (See id.)  The plaintiff’s former attorneys hired as their counsel the attorneys whom represented the defendants in the prior lawsuit pertaining to the plaintiff’s motor vehicle accident.  (See Smith, supra, at p. 576.)  The Court of Appeal considered whether counsel for the plaintiff’s former attorneys—who had previously represented the defendants in the plaintiff’s personal injury case—should be recused because they were potential witnesses.  (See id.)  The Court of Appeal held that counsel for the plaintiff’s former attorneys should not be recused because the plaintiff’s former attorneys consented to the representation and the policy considerations weighed in favor of their retention.  (See id.at p. 582.)  In its analysis, the Court of Appeal noted that “whenever an adversary declares his intent to call opposing counsel as a witness, prior to ordering disqualification of counsel, the court should determine whether counsel’s testimony is, in fact, genuinely needed” because of the possibility that the adversary is using the motion to disqualify for purely tactical reasons.  (See id. at p. 581.)

As previously articulated, in the present case Mr. Lawson is no longer Mr. Hager’s counsel and there is no indication whatsoever that he will appear as an advocate before a jury in this case.  Additionally, unlike in Smith, Plaintiff does not seek Mr. Lawson’s recusal, but merely seeks to take his deposition.  Thus, there is no concern that Plaintiff’s decision to depose Mr. Lawson is a tactical one made in order to disqualify him as counsel.  Absent such a concern, there is no authority that this Court is aware of requiring Plaintiff to demonstrate that he exhausted other means of discovery prior to taking Mr. Lawson’s deposition.  While Plaintiff may in fact be able to obtain much of the same information from Mr. Hager himself, that in and of itself is not a valid ground for quashing Mr. Lawson’s deposition.

IV.           Attorney-Client Privilege

Mr. Lawson argues that the Court should quash the deposition subpoena in its entirety because his testimony is protected by the attorney-client privilege.  Mr. Lawson asserts that “Plaintiff’s questioning will undoubtedly focus on [his] representation of [Mr. Hager].”  (Mem. Ps & As., p. 5:6-9.)  Mr. Lawson states that while “Plaintiff’s counsel has provided a document executed by [Mr. Hager] in which [Mr. Hager] purportedly waives the attorney-client privilege … [he] does not know the circumstances under which [Mr. Hager] executed the document” and “[i]t is unclear that [Mr. Hager has knowingly given a waiver that would allow [him] to testify in this matter.”  (Mem. Ps & As., p. 12-16.)

Conversely, Plaintiff argues that Mr. Hager is the exclusive holder of the attorney-client privilege and has expressly waived the same.  As indicated above, Mr. Hager signed a declaration on 15 July 2014, stating that he “authorize[s] Jeff Lawson to testify about all matters relating to this case, including those protected by attorney client privilege” and he “waive[s] any and all attorney client privileges and protections relating to Jeff Lawson’s representation of me at any time, including before, during, and after my March 11, 2014 deposition.”  (Peebles Dec., Ex. C.)  Plaintiff further argues that Mr. Lawson has offered no evidence indicating that the Mr. Hager’s waiver was coerced or that it was “anything other than knowing and voluntary.”  (Opp’n., p. 7:8-9.)

Evidence Code section 912, subdivision (a) provides that “the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege) … is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has … consented to disclosure made by anyone.  Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege.”

Mr. Hager is the holder of the attorney-client privilege.  (See Abbott v. Super. Ct. (1947) 78 Cal.App.2d 19, 21 [the client is the holder of the attorney-client privilege].)  In his signed 15 July 2014 declaration, Mr. Hager expressly and without reservation waives the attorney-client privilege.  Mr. Lawson presents absolutely no evidence that Mr. Hager’s declaration was coerced.  Thus, the Court finds that Mr. Hager effectively waived the attorney-client privilege and consented to Mr. Lawson giving testimony as a witness in this case about matters that would otherwise be protected by the attorney-client privilege.  Accordingly, the attorney-client privilege is not a legitimate ground for quashing Mr. Lawson’s deposition.

 

V.            Work Product Doctrine

Mr. Lawson argues that the Court should quash the deposition subpoena in its entirety because his testimony and his client file pertaining to Mr. Hager are protected by the work production doctrine.  Mr. Lawson cites State Comp. Insurance Fund v. Super. Ct. (2001) 91 Cal.App.4th 1080, and argues that since he is the exclusive holder of the work product protection, Mr. Hager cannot waive the same.  Mr. Lawson also states that “[i]f the deposition proceeds … under no circumstances should Plaintiff’s counsel be allowed to examine [him] on his mental impressions.”

Conversely, Plaintiff argues that Mr. Lawson is obligated to produce his file under California Rules of Professional Conduct, rule 3-700(D)(1), which requires an attorney to promptly release to the client all client papers and property, upon the client’s request, once the representation is terminated.

Plaintiff further argues that while attorneys are generally the holder of the work product privilege, that privilege is not absolute.  Plaintiff asserts that the privilege does not apply in the present case because “Mr. Hager has authorized Plaintiffs to obtain the work product to determine if [Mr. Lawson’s] breach of his professional duties caused or influenced Mr. Hager to give testimony adverse to his son’s and his own interests,” citing Code of Civil Procedure section 2018.080.  Plaintiff also asserts that the work product privilege does not apply here because refusal will result in an injustice given that “the only reason [Mr. Lawson] has the work product in the first place is because he misled [Mr. Hager] into thinking he represented [Plaintiff’s] interests,” citing Code of Civil Procedure section 2018.030, subdivision (b).

Lastly, Plaintiff argues that State Comp. Insurance Fund v. Super. Ct. (2001) 91 Cal.App.4th 1080 is inapposite because the court did not decide whether the attorney could assert the privilege against his own client, which is what Mr. Lawson is asking the Court to do here, citing Lasky, Haas, Cohler & Munter v. Super. Ct. (“Lasky”) (1985) 172 Cal. App. 3d 264.

“California’s civil work product privilege is codified in section 2018.030.  Subdivision (a) provides absolute protection to any ‘writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.’  Such a writing ‘is not discoverable under any circumstances.’”  (Coito v. Super. Ct. (2012) 54 Cal.4th 480, 488.)  “Section 2018.030 subdivision (b) provides qualified protection for all other work product.  Such material ‘is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.’”  (Id.)  The work product protection against disclosure extends to both written and unwritten work product.  (See Fireman’s Fund Ins. Co. v. Super. Ct. (2011) 196 Cal. App. 4th 1263, 1281.)   The protection of work product is not absolute and is determined on a case-by-case basis.  (See Coito v. Super. Ct., supra, at p. 488, citing City of Long Beach v. Super. Ct. (1976) 64 Cal.App.3d 65, 71.)

The Court finds that Mr. Lawson’s objection to his deposition and the production of his file regarding Mr. Hager based on the work product doctrine has merit.

First, California Rules of Professional Conduct, rule 3-700(D)(1) does not apply here because it is Plaintiff, not Mr. Hager, who issued the subpoena to Mr. Lawson that is the subject of the instant motion to quash.  While Mr. Hager—as Mr. Lawson’s former client—may have the right to demand that Mr. Lawson provide him with the file pertaining to Mr. Lawson’s representation of him pursuant to California Rules of Professional Conduct, rule 3-700(D)(1), that rule does not entitle Plaintiff to the production of any portion of the file.

Second, Code of Civil Procedure section 2018.080 does not apply here because it only provides that the work product privilege does not apply “[i]n an action between an attorney and a client or a former client of the attorney.”  The case at bar is not between Mr. Lawson and Mr. Hager, but Plaintiff and Defendant.

Third, Mr. Lawson is correct that as the attorney he is the holder of the work product privilege such that it cannot be waived by Mr. Hager.  (See Wells Fargo Bank, N.A. v. Super. Ct. (2000) 22 Cal.4th 201, 215, fn. 5; see also State Comp. Insurance Fund v. Super. Ct., supra, 91 Cal.App.4th at p. 1091; see also Wellpoint Health Networks, Inc. v. Super. Ct. (1997) 59 Cal. App. 4th 110, 121.)   While Plaintiff is correct that the Court of Appeal in Lasky “emphasized the narrowness of [the] holding and pointed out that [it was] not called upon to ‘consider the far stronger public policy considerations involved in discovery where the client seeks his former attorney’s work product to prepare his own case against that attorney,’” Mr. Lawson’s file is not sought by Mr. Hager in order to prepare a case against Mr. Lawson, but by Plaintiff to prepare a case against Defendant.  (Metro-Goldwyn-Mayer, Inc. v. Super. Ct. (1994) 25 Cal. App. 4th 242, 246-247 citing Lasky, supra, 172 Cal. App. 3d at p. 279.)

Since it is virtually certain that Mr. Lawson’s file pertaining to Mr. Hager would reveal information that is protected by the work product doctrine, the Court finds that an in camera inspection of Mr. Lawson’s file is necessary to determine which documents are entitled to absolute and/or qualified work product protection.[3]  (See Wells Fargo Bank v. Super. Ct. (200) 22 Cal. 4th 201, 215 [inspection in camera is an appropriate way of determining whether documents are entitled to protection as work product].)

Furthermore, the Court finds that Mr. Lawson is entitled to a protective order preventing Plaintiff’s counsel from examining him at deposition as to his mental impressions, conclusions, opinions, or legal research or theories as such information is entitled to absolute protection.  (See Code Civ. Proc., § 2018.030, subd. (a).)  The Court declines to issue a protective order with respect to deposition questions that may seek the disclosure of information that is subject to qualified work product protection.  However, to the extent that Mr. Lawson believes that a particular deposition question seeks information that is entitled to qualified work product protection (see Code Civ. Proc., § 2018.030, subd. (b)), he may of course object to the question on that ground.  (See Code Civ. Proc., § 2025.460, subd. (a).)

Conclusion and Order

Mr. Lawson’s motion to quash the deposition subpoena issued to him in its entirety or, in the alternative, for a protective order is GRANTED IN PART and DENIED IN PART.  The motion is DENIED as to the request for an order quashing the subpoena in its entirety.  The motion is GRANTED as to the request for a protective order providing that Plaintiff’s counsel shall not examine Mr. Lawson at deposition as to his mental impressions, conclusions, opinions, or legal research or theories.  In addition, within 20 days of the date of the filing of this Order, Mr. Lawson shall produce to the Court his file regarding Mr. Hager for an in camera review.  The parties shall meet and confer regarding the scheduling of Mr. Lawson’s deposition to determine a mutually agreeable date and time.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] “Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”

[2] In his motion, Mr. Lawson does not clearly articulate what the terms of the protective order should be.  However, he does state in the portion of his memorandum of points and authorities discussing the issue of the work product doctrine that Plaintiff’s counsel should not be allowed to examine him “on his mental impressions” if the Court finds that his deposition should proceed.

[3]The Court notes that Mr. Lawson requests that the Court conduct an in camera review of two documents to assess whether his testimony may be detrimental to Mr. Hager or injure the integrity of the judicial process before ruling on this issue, citing Smith, Smith & Kring v. Super. Ct. (1997) 60 Cal.App.4th 573.  The Court finds that this is unnecessary because, as stated above, Mr. Lawson’s testimony does not infringe on the ethical duties that he owes to Mr. Hager.