Judge Stephen I. Goorvitch, Case 20STCV34632 2022-08-29 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 20STCV34632, Date: 2022-08-29 Tentative Ruling

Case Number: 20STCV34632 Hearing Date: August 29, 2022 Dept: 39

Dependable Highway Express v. Lewis Brisbois Bisgaard & Smith, LLP

Case No. 20STCV34632

Motions to Compel Further Responses

Plaintiff Dependable Highway Express (“Dependable” or “Plaintiff”) filed this action on September 10, 2020, against Lewis Brisbois Bisgaard & Smith, LLP (“Lewis Brisbois” or “Defendant”), asserting a cause of action for breach of fiduciary duty. Plaintiff alleges that Lewis Brisbois counseled a client, believed to be Famosa, Inc. (“Famosa”), in a manner that injured Plaintiff, another Lewis Brisbois client. (First Amended Complaint, ¶ 10.) The amount of payment for damage during interstate transportation is limited by the Carmack Amendment. (Id., ¶ 14.) Plaintiff alleges that Famosa, which imports marble, sought a legal opinion from Lewis Brisbois to determine whether Famosa could “sidestep the limits of the Carmack Amendment and [] maximize Famosa’s financial recovery in case of damage to sheets of marble that it intended to import into Santa Ana from Brazil in 2017.” (Id., ¶ 15.) Plaintiff alleges that Lewis Brisbois advised Famosa to end the international shipment at the arrival port, and then move the cargo inland, in order to break the nexus with interstate commerce and subject the last inland carrier to California’s laws rather than the Carmack Amendment. (Id., ¶ 18.) Famosa hired Plaintiff to handle the last leg of the transportation, and the cargo was damaged. (Id., ¶¶ 20-21.) Lewis Brisbois allegedly provided a demand letter to Dependable, seeking damages under California law, and Dependable took the position that its liability was limited under the Carmack Amendment. (Id., ¶¶ 21-26.) Lewis Brisbois allegedly has represented Dependable for several decades. (Id., ¶ 7.)

Plaintiff filed a motion to compel further responses to certain Requests for Production of Documents (“RPDs”), Form Interrogatories (“FROGs”), and Special Interrogatories (“SROGs”). The Court held a hearing on the motion, which it treated as an informal discovery conference, and then ordered the parties to meet-and-confer and file a joint statement. (See Court’s Minute Order, dated July 20, 2022.) The parties have largely resolved the issues, but require a ruling on whether Lewis Brisbois has waived attorney-client privilege and attorney work product protection. The Court answers this question in the negative.

As an initial matter, there cannot be a waiver of privilege based upon late or inadequate discovery responses in this case. This is not a case in which a defendant failed to comply with his discovery obligations, and his own privilege is waived. Rather, the defendant in this case is a law firm. Plaintiff takes the position that the law firm’s deficient discovery responses waive the client’s privilege. This is incorrect. The privilege is held by the client, not the law firm, so the law firm’s failure to comply with its own discovery obligations does not operate as a waiver.

Putting that aside, Defendant’s responses did not waive privilege. Defendant’s timely objections and belated privilege log were sufficient to preserve its objections. (See Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1126.) Similarly, Defendant’s privilege log is sufficient as it identifies each document for which a privilege is claimed and identifies the authority, date of preparation, recipients, and the specific privilege claimed. (See Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 291, fn. 6.)

Plaintiff argues that Famosa waived privilege because Famosa produced opinions provided by Lewis Brisbois in a separate lawsuit with Plaintiff. A client waives attorney-client privilege “with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Evid. Code, § 912(a).) Accordingly, the legal opinions themselves are not privileged, and Plaintiff has copies. The legal opinions did not disclose any privileged communications, and Famosa made clear that it did not intend to waive privilege based upon its opposition to the discovery motion in the underlying litigation. Regardless, any waiver would entitle Plaintiff only to what it already has, viz., the underlying legal opinions. Therefore, the requested discovery would be cumulative and not relevant.

Plaintiff also argues that it is entitled to Lewis Brisbois’s work product relating to its representation of Famosa. Work product is subject to a different analysis. A writing reflecting an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (Code Civ. Proc., § 2018.030(a).) Therefore, Plaintiff is not entitled to these materials for the reasons discussed above, i.e., Famosa did not waive privilege. However, “[t]he work product of an attorney, other than a writing described in subdivision (a) 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.” (Code Civ. Proc., § 2018.030(b).) Nevertheless, the Court cannot conclude that there would be an injustice. Plaintiff already has the legal opinions from Lewis Brisbois to Famosa allegedly comprising the basis of this case.

Finally, Plaintiff argues that it is entitled to Lewis Brisbois’s work product and communications relating to this lawsuit. On October 1, 2019, Plaintiff’s counsel sent the managing partner of Lewis Brisbois a demand letter. (Declaration of David E.R. Wooley, Exh. #1.) Following that letter, there were a series of internal communications among Lewis Brisbois attorneys. When an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with a client, the attorney-client privilege may apply to such communications. (Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1227.) Simply, an attorney-client relationship may exist between attorneys within the same firm. (Ibid., citing Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 117-119.) “[A]n attorney who consults another attorney in the same firm for the purpose of securing confidential legal advice may establish an attorney-client relationship.” (Ibid., citing Evid. Cod §§ 950-952.) There are four factors: (1) The firm must have designated the attorneys in the firm to represent the firm; (2) A current outside counsel must have threatened litigation, and the in-house counsel must not have performed work on the case or a substantially related matter; (3) The time spent on the in-house communications must not be billed to a client; and (4) The communications must be confidential. These criteria have been established in the instant case. (See Declaration of Jana Lubert, ¶¶ 4-5.) Therefore, Plaintiff is not entitled to these communications.

The Court acknowledges Code of Civil Procedure section 2018.030, which states: “In an action between an attorney and a client or a former client of the attorney, no work product privilege under this chapter exists if the work product is relevant to an issue of breach by the attorney of a duty to the client arising out of the attorney-client relationship.” (Code Civ. Proc., § 2018.030.) Based upon the plain language, this section applies only to the work product relating to the client suing the attorney, and not the work product of a different client.

Based upon the foregoing, Plaintiff’s motions to compel further responses are denied to the extent they seek documents and information protected by the attorney-client privilege and the attorney work product privilege relating to Lewis Brisbois’s representation of Famosa and response to this action. Defendant’s counsel shall provide notice and file proof of such with the Court.