Judge: Lawrence Cho, Case: 19STCV46486, Date: 2022-09-27 Tentative Ruling
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Case Number: 19STCV46486 Hearing Date: September 27, 2022 Dept: K
CASE NAME: JOSHUA v. BEACHWOOD POST-ACUTE & REHAB
CASE NUMBER: 19STCV46486
COMPLAINT FILED: 12/27/19
HEARING DATE: 9/27/22
TRIAL DATE: TBD
______________________________________________________________________________
TENTATIVE RULING
MOTION: Plaintiff’s Motion for:
Mistrial;
Terminating or Monetary Sanctions;
Disqualify Defense Counsel Wilson & Getty and/or expert Hennington
HELD: DENIED
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”).
Voir dire began on 6/28/22 in which 2 panels of prospective jurors were brought in and time qualified. Those that were time qualified were given juror questionnaires to fill out which were completed, and copies provided to counsel in preparation for jury selection. On 6/29/22, those jurors returned as ordered but were dismissed due to P’s accusations of misconduct against D’s counsel, Wilson Getty (“D Counsel”). Specifically, P asserted that D Counsel violated attorney work product by hiring a jury consultant, Marshall Hennington (“Consultant”) after P had previously divulged attorney work product to him in P’s previous attempt to Consultant for this case. D Counsel admitted that they knew that Consultant had previously been in contact with P’s Counsel to consult on this case but claimed that they had been reassured by Consultant that no privileged information was provided from P to Consultant. Consultant admits that he had retention discussions first with P’s Counsel, was not retained by them, and was then hired by D’s counsel for this very matter at bar. Consultant states in his current Declaration that he told D's counsel that he had received no confidential information from his earlier retention contacts with P’s counsel. By the time Consultant’s retention by D’s Counsel was revealed at trial, Consultant had already reviewed the juror questionnaires, rated each prospective juror, and had suggested additional voir dire questions to D’s Counsel.
Upon learning of the above, this Court dismissed the pending panel of prospective jurors and set a briefing schedule to litigate whether D’s retention of Consultant resulted in any breach of attorney client work product/confidential information. Consultant has now recused himself from advising on this case.
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 Counsel, terminating sanctions against D, and monetary sanctions in the amount of $2.4M against D Counsel. D Counsel opposes P’s motion and in turn moves for sanctions against P’s counsel for having brought this motion.
This matter has been extensively briefed and both parties have lodged with this Court in camera documents reflecting all written communications between counsel for each party and Consultant.
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.4th 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, after having learned of plaintiff counsel’s previous discussions with the accounting firm, failed to contact plaintiff counsel to do a conflict check. Id. at 1072. The opinion also emphasized repeatedly that plaintiff’s counsel should have done so. Id. 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 analyzing whether attorney disqualification is warranted “based on nonlawyer employee conflicts of interest” 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.
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, emails, 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:
On June 8, 2022, Mr. Dubin [lead P’s counsel] texted a detailed description of his vision for trial, basically the entire work product trial strategy from Plaintiff’s perspective. Mr. Dubin shared with Hennington [Consultant] his trial arguments, strategies, thoughts on damages, thoughts on Defendant’s liability, anticipated trial arguments, and his plans for anticipated defenses.
Id.
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.4th 1471, 1483. In that case, plaintiff had disclosed confidential information to a consulting firm that thereafter asked someone to join that firm who had been hired as an expert witness for the opposing defense counsel. Because of the possibility that plaintiff’s confidential information had flowed through the consulting firm to the newly hired consultant and then to defense counsel, plaintiff moved to disqualify defense counsel. 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 had passed from plaintiff 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, Defendant 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 the D’s Opposition to this Motion.
Any remaining confidential information that was not disclosed in the 1/13/22 Della Donna email was disclosed to D’s counsel by P’s counsel Eric Dubin in another email dated 6/2/22 to P’s counsel William Wilson. (Exhibit T to D’s Opposition Brief). This email requested D’s counsel to stipulate to various facts asserted by P including that no Registered Nurse has 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.
One concrete example of what would otherwise have been an improper confidential disclosure deals with the alleged use/misuse of Licensed Vocational Nurses (“LVN’s”). Without this Court disclosing work product of either side, the in camera submissions show that the issue of LVN’s was discussed from P’s Counsel to Consultant and the same topic discussed from Consultant to D’s counsel. Without anything more, the in camera submissions show what would have been prima facie evidence of an improper intrusion into P’s work product camp. However, when the Court examines both the Della Donna email and the Dubin email, it is clear that the LVN issue had previously been disclosed from P’s Counsel to D’s Counsel, thereby stripping the LVN confidential information of its privileged communications status.
Having reviewed P’s in camera submissions, and having compared those to the two P emails above that had been disclosed to D’s counsel, this Court finds that all of the confidential information provided to Consultant had previously been voluntarily divulged to D’s counsel by P’s counsel. The legal significance of this finding is that such information was therefore no longer privileged. In P’s words, P did divulge to Consultant their “game plan for trial” (P’s Reply Brief at p.7), but that game plan had long been voluntarily revealed to D and was therefore not privileged. Simply put, according to what has been submitted to this Court from both parties, there was nothing P’s counsel disclosed to the Consultant that they had not already voluntarily disclosed to D’s counsel.
Even assuming that the information P provided to Consultant had not lost its privilege
due to previous voluntary disclosure of such information to D’s counsel, this Court would also find that no disclosure of the confidential information at issue was disclosed from Consultant to D’s counsel. Both the Consultant and D’s counsel have provided sworn declarations that no information (privileged or otherwise) from P’s counsel to Consultant had been passed on by Consultant to D’s counsel. This Court has also reviewed D’s in camera submission of any written communication between D’s counsel and Consultant, which supports D’s contention and Declarations that no confidential information from P had been disclosed. As there is no evidence to the contrary (while at the same time recognizing the near impossible task of P’s counsel to unearth such evidence), the Court takes these sworn declarations and in camera submission at face value and finds that no information (privileged or otherwise) had been disclosed from Consultant to D’s counsel.
In terms of the Shadow Traffic analysis, D has rebutted the triggered presumption that confidential information had been disclosed from Consultant to D’s counsel. Western Digital Corp., 60 Cal.App.4th at 1485. Just as in Western Digital, D here has met its preponderance of the evidence burden of rebuttal by its submitted Declarations, in camera submissions, and proof that the confidential information learned by Consultant from P had lost any privilege due to it having been previously voluntarily disclosed to D.
Having found that no privileged confidential materials were used or disclosed by Consultant to D, there is no violation to remedy and hence P’s motion at bar must be DENIED.
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 qualify for this definition.
With respect to P’s allegation that D had intentionally hired the Consultant with the bad faith purpose of invading the P’s legal camp or to gain confidential 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 had hired Consultant and applauds D's counsel’s for having questioned Consultant as to whether he had learned any confidential information from P before hiring him. At the same time, and with equal force, 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 retention discussions 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 so 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 (i) had a monetary incentive to be hired, (ii) is not an attorney, and (iii) is 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) does not equate to frivolous or bad faith ones necessary 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 that P’s counsel had disclosed confidential information to Consultant during their retention contact (in writing, no less), P’s counsel had every reason to be alarmed when they saw Consultant at D’s counsel table on the second day of jury selection. 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 confidential 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 privilege litigation. This sensitive issue and resulting litigation currently at bar 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 motion was unfortunately a necessary evil to both (i) fully air out the odor and appearance of impropriety caused by D’s hiring of Consultant, as well as (ii) to ultimately fully exonerate D of such accused impropriety. Both sides to bear their own attorney’s fees and costs incurred in this motion.
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 are also DENIED.