2011-00104236-CU-FR
Richard E Crow vs. The Crow Law Firm
Nature of Proceeding:
Filed By:
Motion to Compel Responses to Request for Production and Deposition
Calnero, Carl J.

Plaintiff Jack Sevey’s (“Sevey”) motion to compel additional responses to request for
production of documents at deposition of person most knowledgeable is ruled upon as
follows.

The Court notes that although the motion is entitled as one to compel “additional responses”, Sevey actually seeks to compel the production of documents requested in
his Amended Notice of Deposition of PMK of DLA Piper (“DLA”), which have been
listed on DLA’s privilege log.

Background

In August 2010, DLA’s San Francisco office (attorney David F. Gross “(Gross”)) filed a
complaint on behalf of the Crow Law Firm (“Firm”) against Joseph Weninger
(“Weninger”) and Richard Crow III (“Crow”) (partners in the Firm) for breach of fiduciary
duty, among others. (Sacramento County case no. 34-2010-00084523 (the “Firm
Action”).) According to Sevey, Donald Britt (“Britt”) contacted DLA to file the complaint
in the Firm Action. On July 28, 2010, DLA sent Britt an engagement letter to represent
the Firm in connection the Firm Action. (Declaration of Carl Calnero (“Calnero Decl.”)
Ex. C.) The complaint in the Firm Action was dismissed without prejudice on March
14, 2011. (Id.)

According to Sevy, DLA became aware of its potential conflict of interest in August
2010, when it learned that Weninger and Crow’s threatened to sue Britt for his failure
to disclose information regarding the Doi settlement proceeds. In Spring 2011, Britt
retained Matthew Jacobs (“Jacobs”), a litigation partner at the Sacramento firm
Stevens, O’Connell & Jacobs LLP (“SOJ”), to defend him in this action. In April 2011,
SOJ merged into the Sacramento office of DLA. In June 15, 2011, Jacobs sought a
waiver from the Firm in order to represent Britt in the instant action. (Id.) Britt signed
the waiver on behalf of the Firm. (Id.)

In March 2012, Britt was removed as the Firm’s president. On December 6, 2013,
Jacobs moved to be relieved as Britt’s counsel on the grounds that Sevey had served
DLA with a deposition subpoena. The Court granted the motion to withdraw on
December 31, 2013. Britt has retained new counsel. On January 30, 2014, the Firm’s
board voted to waive confidentiality and instruct DLA to answer all questions posed
regarding its former representation of the Firm. DLA has refused to produce certain
documents on the grounds that they are protected by the attorney work product
privilege.

Sevy is a shareholder at the Firm and filed a complaint against Britt. Sevy’s action
was consolidated into this lead action.

Analysis

Sevey argues that pursuant to Metro-Goldwyn-Mayer, Inc. v. Superior Court (1994) 25
Cal.App.4th 242 (“MGM”), DLA has waived its right to claim attorney-work product
privilege.

In MGM, the court dealt with the issue of whether an attorney’s duty to release all
“client papers and property” to a former client upon request (Rules of Prof. Conduct,
rule 3-700), requires disclosure of the attorney’s “absolute” work product. The court
held that “on the facts presented”, MGM’s former counsel, Christensen, had waived
any right it might otherwise have to protect its absolute work product from disclosure to
its former client. (Id. at 244.) Christensen had previously represented MGM and its
majority shareholders in a merger transaction. MGM thereafter sued the majority
shareholders alleging that they fraudulently engineered the merger. In a separate, but
related action, the bank which funded the merger sued the majority shareholders. Christensen represented the majority shareholders in the bank action.

MGM filed a motion directing Christensen to provide it with access to all files pertaining
to the merger and all files pertaining to a subsequent involuntary bankruptcy
proceeding in which Christensen represented MGM. The court found that Christensen
had waived any right to protect its absolute work product created during the merger
from MGM. (Id. at 251.) The court explained
The simple fact is that one of the parties affected by the merger which is
the subject of this action is being denied 86 documents which reflect
Christensen’s impressions, conclusions, opinions, legal research and
theories concerning the merger while other parties to the transaction
enjoy access to this information. Equity demands that either both parties
should have the information or neither should.

(Id. at 249.) The court further stated that Christensen had placed itself in opposition to
its former client’s position with respect to the merger and that it was
not conscionable to allow Christensen to use its work product developed
in the underlying transaction for the benefit of some of its clients and
against another. Having chosen sides in this litigation, Christensen
cannot be heard to demand application of its own privilege to keep
relevant documents from its former client, MGM.
(Id.)

In opposition to the motion, DLA argues that MGM is inapposite. DLA argues that
unlike MGM, it did not represent both the Firm and Britt in the Firm Action and
thereafter represent Britt in the instant action. Moreover, according to DLA, it is not
using its work product to Britt’s advantage and to the Firm’s detriment.
Gross’ declaration states that on August 9, 2010, his office stopped all work on the
Firm Action. (Declaration of David Gross, ¶ 3.) two files were created for the Firm
Action and were maintained in DLA’s San Francisco office until they were transferred
in late 2013 to DLA’s general counsel in order to respond to Sevey’s subpoena. (Id. ¶
6.) He also states that at no time from 2010 to the present did he ever provide
documents or information from the Firm Action files to Jacobs or any other attorney in
DLA’s Sacramento office. (Id. ¶ 6.) Jacobs’ declaration states that “at no time before,
during, of after my representation of Mr. Britt have I accessed the DLA Piper files from
the firm’s 2010 representation of The Crow Law Firm. Moreover, at no time have I
learned of any confidential information in The Crow Law Firm files at DLA Piper. I
have never spoken to Messrs. David Gross, Stephen Chiari or Gilles Attia regarding
The Crow Law Firm matter of the confidential information contained therein.
Moreover, I never used the information from The Crow Law Firm files for any reason,
whatsoever, whether to benefit Mr. Britt or otherwise.” (Declaration of Matthew
Jacobs, ¶ 4.)

The Court agrees with DLA that MGM is inapposite to the circumstances herein.
Notably, the MGM holding was based specifically “on the facts presented” to the MGM
court. (Metro-Goldwyn-Mayer, Inc., supra, 25 Cal.App.4th at 244.) The Court also
notes that unlike MGM, the Firm has not requested the documents. Rather, Sevey, as
an individual, has requested the documents pursuant to a subpoena.DLA has demonstrated that it is not using documents from the Firm Action to benefit its
client. Indeed, Britt is no longer DLA’s client. DLA is not “chosen sides” in the instant
litigation. (Id. at 249.)

Accordingly, the motion is DENIED. Given that the Court has denied the motion in its
entirety, the Court need not address Britt’s opposition to the motion.

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