Judge: Lawrence Cho, Case: 19STCV03403, Date: 2022-10-06 Tentative Ruling

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Case Number: 19STCV03403    Hearing Date: October 6, 2022    Dept: K

CASE NAME:           JOSHUA v. BEACHWOOD POST-ACUTE & REHAB

CASE NUMBER:                             19STCV46486

COMPLAINT FILED: 12/27/19

HEARING DATE:                                                   9/16/22                         

TRIAL DATE:                      TBD

______________________________________________________________________________

MOTION:  Plaintiff’s Motion for: 

1. Mistrial;

2. Terminating or Monetary Sanctions;

3. Disqualify Defense Counsel Wilson & Getty and/or expert Hennington

    

   Defendant’s Cross-Motion for Sanctions

     

    

   HELD:        DENIED

    

   FINAL RULING

    

I.                  BACKGROUND & PROCEDURAL HISTORY

This is a wrongful death action brought by Plaintiffs (“P”) against Defendant’s medical center (“D”), alleging that inadequate medical care regarding worsening bed sores led to the death of P’s family member, decedent Edroy Brewer (“decedent”).  The issue in this motion centers around both parties having had contact with the same juror consultant, Marshall Hennington (“Consultant”).  These contacts have let to P’s allegation in this motion that their privileged work product provided to Consultant had then passed to D.  Due to the nature of the alleged privileged communications, both parties have submitted in camera communications between each respective party and Consultant.  In order not to reveal this in camera privileged material, this Court will only describe such submissions in general descriptive terms.  The relevant dates and events are as follows:

In this motion, P asserts that D violated attorney work product by hiring Consultant knowing that P’s counsel had already had retention discussions with him.  P’s counsel asserts they had already divulged attorney work product in those prior retention discussions and has submitted to this Court in camera copies of text messages with Consultant proving such.  D’s  counsel admits that they knew Consultant had previously had retention discussions with P’s counsel, but had been reassured by Consultant that no privileged information was provided from P to Consultant.  In addition to in camera submissions from both parties, both sides have also submitted extensive briefing and multiple Declarations in support of their respective positions.  As of the hearing date on this motion on 9/27/22, Consultant had recused himself from advising on this case to any party.   

P now moves for several remedies for the alleged invasion of their work product, ranging from a mistrial and disqualification of Consultant (both of which has already happened), to disqualification of D’s Counsel, terminating sanctions against D, and monetary sanctions against D’s Counsel.  D has also filed a cross-motion for sanctions against P, alleging that this motion is frivolous.

II.           ANALYSIS

A.           Legal Framework

The legal framework applicable to disqualification motions based on improper divulging

of attorney work product via retained consultants is set forth in Shadow Traffic Network, Inc., et al v. Superior Court of Los Angeles County (1994) 24 Cal.App.4^th 1067.  In facts similar to the ones at bar, plaintiffs in that case had met with an accounting firm, Deloitte and Touche, in an effort to retain them as possible experts in their case.  Id. at 1071-72.  Plaintiffs did not ultimately retain the accounting firm but did divulge confidential information during its initial exploratory retention discussions.  Subsequently, defendant in that action hired the same accounting firm despite having been previously advised that the firm had already had discussions with opposing counsel for plaintiffs.  Id.  The opinion makes a point of highlighting that defense counsel did not contact plaintiff’s counsel after having learned of plaintiff counsel’s discussions with the accounting firm and that they should have.  Id. at 1072, 1084 (“the point is clear: a brief but professional exchange can expeditiously resolve the issue and avoid needless litigation”); 1089 (disqualified counsel “should have” contacted opposing counsel upon learning of the prior contact with the accountants).

            The process of ascertaining whether there has been a breach of attorney work product privilege and what remedy to apply if so, is directly set forth in Shadow Traffic:

The party seeking disqualification must show that its present or past attorney’s former employee possesses confidential attorney-client information materially related to the proceedings before the court.  The party should not be required to disclose the actual information contended to be confidential.  However, the court should be provided with the nature of the information and its material relationship to the proceedings.  Once this showing has been made, a rebuttable presumption arises that the information has been used or disclosed in the current employment.  The presumption is a rule by necessity because the party seeking disqualification will be at a loss to prove what is known by the adversary’s attorneys and legal staff.

Id. at 1084-85. 

            Ultimately, the court in Shadow Traffic found that confidential information had been passed from plaintiff’s counsel to the accounting firm, and that defense counsel failed to rebut the legal presumption that such privileged information had not been used or disclosed to them.  As such, that court ordered the recusal of defense counsel’s entire firm.  Id. at 1087-89.

III.         ISSUES TO BE DECIDED

Following the analytical framework set forth in Shadow Traffic, the factual issues to be

decided in this motion are:

(i) whether confidential information/work product passed from P Counsel to Consultant;

(ii) whether such confidential information was privileged; 

(iii)   if so, whether D has rebutted the legal presumption that privileged confidential work product passed from Consultant to D Counsel.

If the answer to all 3 factual questions above is yes, then the Court must decide what

 the proper legal remedy should be to cure the violations.

IV.         FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.           Passage of Confidential Information From P to Consultant

After reviewing both P’s in camera submissions as well as P’s publicly available

summaries, this Court concludes that confidential attorney work product information was shared from P’s counsel to Consultant.  This information was provided to Consultant through a series of texts and phone calls in which P’s counsel divulged a summary of their case, their theory of liability, and specific evidence of D’s alleged wrongdoing.  The details of this confidential information are contained in the in camera submission of a 6/8/22 text message from P Counsel Dubin to Consultant.  An accurate summary thereof is contained in the publicly available Declaration of Annee Della Donna in Support of Motions, Para.4 stating that P’s counsel shared with Consultant “trial arguments, strategies, thoughts on damages, thoughts on Defendant’s liability, anticipated trial argument, and his plans for anticipated defenses.” 

B.         D Has Rebutted the Presumption That P’s Privileged Confidential Information Had Passed from Consultant to D 

Having established that confidential information passed from P to Consultant, the

Shadow Traffic presumption that such information passed to D applies, and the burden of proof

shifts to D to prove by a preponderance of the evidence that the presumption has been rebutted.  Shadow Traffic Network, 24 Cal.App.4^th at 1085. 

D attempts to rebut the presumption by first submitting a series of Declarations from

several of D’s trial counsel as well as Consultant, all claiming that no confidential information of P’s was passed on to D by Consultant.  This Court recognizes that denial declarations in this realm are of limited value because the privileged information provided to the middleman could “consciously or unconsciously . . . shape or affect the analysis and advice” given by such.  Id. at 1086.  In addition, “it would be highly unlikely that [such middleman] could discharge his duty to [D] as its retained expert and at the same time discharge his duty not to divulge confidential information received from [P].”  Id.  Nevertheless, limited value or not, no evidence has been submitted to contradict the denial declarations submitted by D (while at the same time recognizing the near impossible task of P’s counsel to unearth such evidence) and the Court takes these sworn declarations at face value, but also finds that standing alone these Declarations are insufficient to rebut the presumption.

            D’s second argument wields considerably more weight:  that the information provided from P to Consultant had lost its privileged status because it had been previously revealed from P to D in prior discovery and pleadings.  Confidential information loses any privilege when the holder of such information voluntarily discloses such to parties outside the privilege.  Western Digital Corp. v. Superior Court of Orange County (1998) 60 Cal.App.4^th 1471, 1483.  In that case, plaintiff had disclosed confidential information to a consulting firm which subsequently hired another employee that had  been retained by the defendant.  Because of the possibility that plaintiff’s confidential information had flowed through the consulting firm to the newly hired expert and then to defense counsel, plaintiff moved to disqualify defense counsel, just as in the case at bar.  Id. at 1479.  The Western Digital Corp. court denied the request for disqualification in part because it found that “everything of substance” to the confidential information that passed to the consulting firm had already been revealed to defense counsel through the amended complaint, plaintiff’s discovery responses, and a mediation settlement statement prepared and produced by plaintiff’s counsel.  Id. at 1483-84.

Here, D makes the same argument that any confidential information from P’s

counsel to Consultant lost any privilege by virtue of the fact that such information had previously been divulged to D’s counsel.  The key document relied upon by D is a 4 page email dated 1/13/22 from P’s counsel Della Donna to P expert witness Dr. John M. Deacon, which had been revealed to D’s counsel in preparation for Dr. Deacon’s deposition.  (Exhibit 2 to Declaration of Stephen M. Garcia).  This email from P’s counsel divulges many of P’s claimed privileged information including P’s theory of medical negligence, the instrumentality of death being an untreated or undertreated bed sore suffered by decedent which grew and worsened, the cause of death being septic shock, and the failure of D’s doctor to mention sepsis as the cause of death on the death certificate.  A detailed summary comparison between P’s confidential information and how such information had previously been disclosed by  P’s counsel is contained in Exhibit 1 to D's Opposition Brief to this Motion.

In addition to the 1/13/22 Della Donna email, other claimed confidential information revealed to Consultant had previously been revealed to D via a 6/2/22 email from P’s counsel Eric Dubin to P’s counsel William Wilson.  (Exhibit T to D’s Opposition Brief).  This email requested P’s counsel to stipulate to various facts including that no Registered Nurse had ever examined the decedent while in D’s facility; that D’s had back dated medical care after decedent’s passing; and that D had improperly allowed LVN’s to assess decedent’s bed sore condition. 

            At the hearing on this motion, P’s counsel argued that there was confidential information that had not previously been disclosed to D and highlighted in orange hi-lighter on the in camera submission of the 6/8/22 text messages with Consultant.  An examination of this short 2 sentence portion does not further P’s assertion.  The first sentence regards a type of damage already pled in P’s complaint.  The second sentence regards the inaccuracy of decedent’s medical records reflecting medical services rendered which has already been mentioned in the Dubin 6/2/22 email cited above.  It should also be noted that this hi-lighted portion is stated in generalities, containing no specifics or details.  While the exact wording of this portion at issue may not have been contained in the emails cited or the complaint, the gravamen of such information certainly was; or in the words of Western Digital Corp. v. Superior Court, 60 Cal.App.4^th 1471, 1484, “everything of substance” had already been revealed.  The legal significance of this is that while the information revealed from P to Consultant was indeed confidential, as this Court has already found, P’s prior voluntary disclosure to D “waives any privilege that had attached to the communications.”[1]  Id. at 1483.

            Given D’s assertions and submissions above, particularly as to the waiver of privilege, this Court finds that D has rebutted the Shadow Traffic presumption.  Just as in Western Digital, D here has met its preponderance of the evidence burden of rebuttal through the Declarations, in camera submissions, and proof of prior voluntary disclosure of the confidential information which stripped the privilege from such information. 

C.           Remedy for the Breach of Confidentiality

P was justifiably alarmed upon seeing Consultant on the day of trial and learning that he

had been retained by D; as mentioned above, this Court finds that P’s counsel had indeed provided confidential information to Consultant during in the brief exploratory retention communications between them.  However, since this Court finds that such information had lost its privilege there can be no breach of privileged confidentiality and therefore the disqualification of D’s counsel is not warranted.  The appropriate remedy here has already been achieved:  disqualification of Consultant from any party to this case, and a dismissal of the potential jurors that Consultant had advised on. 

D.           Competing Sanctions Motions

Both parties have moved for sanctions against the other and neither will be awarded any.

Sanctions under CCP 128.5(a) are awardable for any “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”  Neither party has done anything to arise to meet a violation of any of these theories.    

            With respect to P’s allegation that D intentionally hired the Consultant with the bad faith purpose of invading the P’s legal camp or to gain unfair intelligence into P’s trial strategy, this Court finds no merit to this accusation.  This Court accepts as true D’s counsel’s explanation of why they hired Consultant and applauds D's counsel’s efforts to question Consultant as to whether he had learned any confidential information before hiring him.  At the same time, this Court also criticizes D’s counsel for not having taken the strongly worded advice in Shadow Traffic and simply called P’s counsel when they had already known that Consultant had consulted with P’s counsel.  Although not intentionally done to cause unnecessary delay, frivolous, or done in bad faith, D’s counsel’s actions in hiring Consultant after knowing he had retention communications with P’s counsel could be characterized as borderline reckless, particularly in not doing a conflict check with opposing counsel.  D’s counsel’s assertion that they merely took Consultant “at his word,” is somewhat alarming to this Court when one considers that the Consultant had a pecuniary interest in being hired by D, is not an attorney and therefore not trained in the perilous nature of attorney work product and confidentiality issues, which are sacrosanct bedrock principles in our system of justice.  Counsel as experienced as D’s counsel surely knew that they were sailing into deeply perilous waters in taking such action.  However, borderline reckless actions (D’s counsel had absolutely no idea what confidential information P’s counsel had passed on to Consultant, and if not for the previous disclosures from P’s counsel waiving privilege, this could easily have resulted in their disqualification as well as terminating and/or heavy monetary sanctions against their client) do not equate to frivolous or bad faith ones sufficient to justify sanctions under CCP 128.5.

            With respect to D’s motion for sanctions against P for bringing this motion to disqualify, this Court finds this accusation equally meritless.  Given the confidential information P’s counsel provided to Consultant (in writing, no less), P’s counsel had every reason to be alarmed when they saw Consultant sitting at D counsel’s table on the second day of voir dire.  This Court finds that P was wholly justified in seeking to have this Court fully investigate the extent of what appeared to them to be a clear-cut invasion of attorney work product and impermissible divulging of privileged information.  D’s argument that P’s counsel knew that what they had told Consultant had already been previously revealed to D’s counsel does not serve D's position that P should be found at fault for pursuing this extensive litigation into privilege -- this issue and resulting litigation bonanza into it were wholly of D’s creation, not P’s.  Although this Court finds that P’s request for the amount of sanctions (a whopping $2.4M) was unreasonable, their accusations of privilege impropriety (even though ultimately unfounded) were not.  This current litigation was unfortunately a necessary (and expensive) evil required to (i) fully air out the odor and appearance of impropriety caused by D’s hiring of Consultant, and (ii) to ultimately exonerate D of such accusations of impropriety. 

Both sides to bear their own attorney’s fees and costs incurred in this motion.

V.           ORDER

• P’s motion for recusal of Consultant and mistrial are DENIED as moot and their request for terminating sanctions, disqualification of defense counsel, and monetary sanctions are all DENIED as without merit.

   

• D’s cross-motion for sanctions is also DENIED.