Judge: Mark H. Epstein, Case: 22SMCV00598, Date: 2023-05-15 Tentative Ruling

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Case Number: 22SMCV00598    Hearing Date: May 15, 2023    Dept: R

The motion to compel is GRANTED, BUT STAYED.  The motion to seal appears to be MOOT because Rule 2.550(a)(3) does not apply to discovery motions.  To the extent it is not moot, it is GRANTED.  The court, having reviewed the materials relating to the sealing motion, concludes that the parties have made the requisite showing similar to that discussed in the court’s prior orders.  The same reasoning applies and the court adopts that reasoning here by reference.

This is a very interesting discovery motion involving the attorney work product doctrine.  (Although sometimes the parties throw in the attorney/client privilege, the work product doctrine seems more apt.)  At issue here are the notes and drafts of two doctors who provided an opinion that Spacey had a sickness or illness that was covered under the terms of the policies at issue.  A bit of background.  Kevin Spacey was involved in the production of the American series House of Cards (HOC).  He was also the star.  While the show was in production for its sixth and final season, allegations emerged concerning Spacey’s behavior, which Spacey denies.  The allegations continued and intensified over time and included allegations of grossly improper conduct on the set, which Spacey also denies.  Eventually, Spacey was suspended and later terminated from the show.  HOC’s sixth season had to be completely rewritten without Spacey and the season was shorter than had been anticipated.  Plaintiff in the instant case claimed that there was a very significant resulting loss and that the loss was insured.  The insurance at issue, which was issued by Defendants Lloyds and Fireman’s Fund, covered losses due to a “sickness” or “illness” rendering Spacey “totally disabled” and unable to fulfill his contractual obligations.  (The foregoing is a gross over-simplification and ought not be taken as canon for the actual allegations, claims, and defenses in this case.  It is a thumbnail sketch at best.)  The policies in question provided that, in order to make a claim, the insured had to present a statement from a physician as to Spacey’s “sickness” or “illness.” 

Here, though, the covered event was not quite the same as a skiing accident that rendered Spacey physically unable to perform.  And there was no treating physician to whom plaintiff could turn.  Accordingly, plaintiff retained the services of two physicians, Drs. Natta and Lank, who reviewed certain materials and rendered opinions in the form of what plaintiff views as the required statements.  Those opinions were included in the claims package sent to the carriers along with the statement that the two doctors would be available to be examined on their opinions.  Defendants did not agree that there was coverage, and this lawsuit followed.  As part of the discovery herein, defendants subpoenaed the doctors and included in the deposition subpoena a request for documents and files.  The doctors largely complied, turning over a significant amount of material.  However, they refused to turn over 28 documents, which they logged, on the basis of the attorney work product doctrine.  Those documents included drafts and notes that presumably reflected either comments or input from plaintiff’s coverage counsel at the time, Mary Calkins, who has not provided a declaration in opposition to the motion.  Defendants have moved to compel the production of those materials. 

The attorney work product doctrine is (oddly) found not in the Evidence Code—where privileges are found—but in the Discovery Act.  Of course, the Discovery Act is no less a statute than a provision of the Evidence Code, but it speaks to the somewhat unusual nature of the attorney work product doctrine.  The statute bars discovery of an attorney’s work product.  It comes in two flavors—an absolute bar and a qualified bar.  The absolute bar does not seem to be applicable here.  It extends only to a writing that reflects an attorney’s “impressions, conclusions, opinions, or legal research or theories.”  Because the documents here all reside in the doctors’ files, no one seems to contend that the absolute bar applies.  The qualified bar protects other work product documents from discovery, but it can be overcome upon a showing 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.”  (Code Civ. Proc. § 2018.030, subd. (b).; see also Coito v. Superior Court (2012) 54 Cal.4th 480.)  Somewhat strangely, the objection to production is not raised by counsel—who holds the work product rights—but rather by the doctors, who do not.  The court considered simply granting the motion on the theory that the doctors lack standing to raise the work product doctrine at all.  However, plaintiff seems to support their position (plaintiff’s counsel wrote the brief) and granting the motion on that technicality would not be in the interest of justice.

The first question, then, is whether the attorney work product doctrine applies at all.  If it does, the second question is whether production should nonetheless be ordered because the qualified protection has been overcome.

Plaintiff analogizes these doctors to medical expert consultants, whose opinions and files are protected by the doctrine (and perhaps even the privilege) until and unless they are designated as testifying experts; only at that point are their files discoverable.  And (at least generally) at that point their conversations with counsel are not protected either.  On the other hand, defendants analogize to testifying experts or perhaps percipient witnesses.  As to those people, there is no privilege or work product doctrine that generally protects their files.

While the answer to this question is not simple, the court favors defendants’ position here.  The typical issue is summed up in an older case, Swartzman v. Superior Court (1964) 231 Cal.App.2d 195.  That court stated: “To complicate his position, the expert normally wears two hats.  He is employed by counsel to form an opinion which he may later present as a witness in court.  He is also engaged as an adviser on trial preparation and tactics for the case and in this latter capacity serves as a professional consultant to counsel on the technical and forensic aspects of his specialty.  From the point of view of counsel, the expert's freedom to advise counsel, to educate counsel on the technical problems of his case, to prepare him to handle unfamiliar data in court, to analyze the availability of expert opinion and the need for its use, all without hindrance from the opposing side, are important elements of counsel's privacy of preparation.  Consultation between expert and counsel may appropriately be given broad immunity from discovery, both as to expert and as to counsel, because none of the expert's opinion, professional though it may be, is relevant evidence in the case.  To the contrary, his opinion is and will remain wholly irrelevant and immaterial as evidence until the expert is called as a witness on the trial and shown to be qualified to give competent opinion testimony on a matter in which he is versed and which is material to the case.  (United States v. Certain Parcels of Land, D. C., 15 F.R.D. 224, 233.) . . .  [¶] Nevertheless the initial status of the expert, as consultant and possible witness, changes its character at that point in the suit when it has become known he will actually testify as a witness.  When it becomes reasonably certain an expert will give his professional opinion as a witness on a material matter in dispute, then his opinion has become a factor in the cause.  At that point the expert has ceased to be merely a consultant and has become a counter in the litigation, one to be evaluated along with others.  Such evaluation properly includes appropriate pretrial discovery.  (San Diego Professional Assn. v. Superior Court, 58 Cal.2d 194; Brown v. Superior Court, 218 Cal.App.2d 430; Grand Lake Drive In v. Superior Court, 179 Cal.App.2d 122.)”  ( Swartzman, supra, 231 Cal.App.2d at pp. 202-203, parallel citations omitted.)  Of course, the Swartzman situation is not the situation at bar.  Neither doctor has been designated as a testifying expert.  But, as defendants correctly point out, they are nonetheless fact witnesses and they have been “designated” in a sense.  Having provided the statements that plaintiff contends satisfy the policies’ terms, they will of necessity be called to explain the bases for their statements and diagnoses.  Further, they were retained for precisely that purpose, or at least that was true at some point. 

The court does not know whether these two doctors were initially retained by coverage counsel to provide advice to counsel as to the strength of a potential claim under the policies.  It could be that such is the case and, if so, during that period they were indeed more in the nature of consultants than witnesses.  Indeed, plaintiff claims as much.  But plaintiff’s claims are mere unsupported argument.  The argument stems from a declaration from litigation counsel that the doctors were initially retained “for the purpose of advising Plaintiffs’ coverage counsel on Mr. Spacey’s ‘sickness,’ so that counsel could offer sound legal advice, develop a legal strategy as to Plaintiffs’ insurance claim, and assess litigation risks.  Drs. Natta and Lank reviewed reported allegations of sexual misconduct by Mr. Spacey, communicated with MRC’s outside investigators who had interviewed Mr. Spacey and alleged victims, and prepared a statement opining that Mr. Spacey’s behavior was consistent with certain mental and psychiatric disorders (the ‘Statement’).”  (Jordano Decl. ¶3.)  The problem is that Jordano was not coverage counsel or counsel at the time.  Jordano does not have personal knowledge of why the doctors were retained; coverage counsel does.  As such, the statement is hearsay.  But even were it not hearsay, no one disputes that at some point their job was to provide a statement to the carrier.  No one can, or does, argue that the doctors were retained solely as consulting experts from start to finish.  Nor does it appear that any of the 28 documents in question pertain to any period when the doctors were serving solely as consultants.  (And to the extent that there is an ambiguity, the ambiguity is resolved against the doctors.  The burden is on the party asserting the privilege—or, in this case, the work product protection—to establish its application.)

The court agrees with defendants here.  At bottom, the doctors were asked to, and did, render an opinion to defendants upon which defendants were being asked to rely.  Indeed, it is defendants’ failure to rely on those opinions that forms the beating heart of plaintiff’s case.  It stretches the line too far to consider these doctors as truly akin to consulting experts.  The hallmark of a consulting expert is that they are consulted by the attorney to provide the attorney (and perhaps the client) with advice and opinions that will inform the litigation.  Their views will never see the inside of a courtroom and the opposing side is not being asked to rely thereon (or at least cannot be sued for refusing to do so).  For that reason, both the attorney-client privilege and the work product doctrine extend to communications between the consulting expert and counsel.  (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671.)  In contrast, a testifying expert is subject to full discovery.  There is no protection or shield with regard to that physician about something told by the attorney.  Similarly, if a treating physician’s diagnosis is at issue, everything the physician relied upon to form the diagnosis is within the realm of discovery, at least as a general matter.  Thus, if a consulting expert becomes a potential witness, the privilege and work product protection is lost to the extent of the subject matter upon which the expert will testify.  (Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527.)  That is not to say that the protections are lost for everything.  To the extent that a line can be drawn between communications designed and had only in the expert’s capacity as a consultant, the protection remains.  But, as said above, the burden is on the party claiming the protection to so establish.

The picture becomes clearer by taking a step back.  Discovery is the rule; privilege is the exception.  Usually, all information is discoverable.  The things shielded from discovery are generally supported by some public principal or policy that undergirds the applicable statute.  Attorney work product is such a policy.  It is based on the common sense view that one party’s counsel’s work should not be stolen by the opposing party or used against that party.  An adjunct to the attorney-client privilege, the policy is designed to allow counsel to engage in a robust inquiry of the facts and law and to thereby facilitate free and open communication with the client without worrying that the inquiry will be turned against counsel or the client.  Therefore, the attorney’s advice is protected—to encourage the free flow of honest and candid information.  And the attorneys’ work is generally protected—to allow the attorney to explore the facts without fear and to reward the attorney for the hard work of delving into those facts.  Without those rules, counsel would be constrained from seeking advice from experts, digging into the facts, interviewing witnesses, or providing the client with an honest assessment.  Relatedly, if the attorney cannot consult an expert, then the attorney cannot provide good and candid advice to the client about the strengths and weaknesses of the case.  Only by protecting not only the attorney client communication but also the communications between attorney and expert can this policy be readily achieved.  And the corresponding statute is designed to achieve those goals.

But that policy fades when the expert steps away from the consulting role and into the role of witness.  A witness who testifies puts her or his credibility at issue.  The jury is entitled to know if the opinion is that of the expert or that of the attorney speaking through the expert.  The jury is entitled to know if the expert believes in the opinion strongly, or believes that a reasonable argument could be made either way.  The point is that the expert is no longer providing confidential advice to the attorney, but rather providing an opinion for someone other than the attorney.  While that “someone” is often a jury, it could just as easily be a judge, an arbitrator, a mediator, or even opposing counsel.  And in this case, it was the carriers.  When the expert steps outside of the role of advisor to the attorney, the expert also loses the cloak of secrecy and privilege.  It is for that reason that some counsel actually hire two experts—one to act as a consultant and one to testify.  Communications with the former are protected; communications with the latter are not. 

Here, the two doctors were retained for the purpose of providing an opinion to the carriers at least as it pertains to this motion.  There could well be other doctors who provided opinions solely to coverage counsel to help counsel gauge whether a claim ought to be made.  But these particular experts provided their opinions directly to the carriers and intended the carriers to rely thereon.  The policies that undergird the work product protection and attorney-client privilege simply have no application in this context.  No good is served by shielding potentially highly probative information concerning the bases for the medical opinions here—the very same opinions that defendants are being sued for not following.  Allowing such information to be discovered will not chill legitimate attorney practice or work.  And that is why the statutes in question do not, by their terms, cover these documents or communications.

Moreover, to the extent that the work product protection were to apply, the court finds that production would still be appropriate.  The need to be able to measure the bases for these key and critical opinions far outweighs any interest in work product that plaintiff (or the doctors) might have.  Of course, to the extent that the privilege governs, there is no such exception.  But the communications here are not subject to the privilege.  They were not communications between counsel and client nor were they in aid of such communications.  They were in aid of communications between the doctors and third parties.  No privilege attaches there.

The court therefore GRANTS the motion to compel.  This order is STAYED, however, to allow plaintiff to seek writ review.  Because this is a bell that cannot be unrung (or at least not easily), the court is cognizant that review of this order is, for most practical purposes, now or never.  Therefore, the order will be stayed and held in abeyance for 20 days.  If, during that time, plaintiff seeks writ review, then the stay will be continued automatically and without further order of the court until such time as the writ petition is finally resolved.  Once the stay is lifted or expires, the documents will be turned over within 2 court days.