In Fireman’s Fund Insurance Company v. Superior Court, No. B229880 (June 28, 2011), the California Court of Appeal (Second District) held parties may not seek discovery regarding communications between an attorney and other attorneys or investigators working for the same firm, nor communications that contain attorney opinions even if not recorded in written form.
FACTS & HOLDING
Front Gate Plaza, LLC, (“Front Gate”) filed a claim in 2006 with Fireman’s Fund Insurance Company (“Fireman’s”) for property damage to its shopping mall. In 2009, attorneys for Fireman’s (specifically Melissa Dubbs) were contacted by an employee of Front Gate, Sunil Chand, who represented that he had evidence of insurance fraud associated with the claim. Fireman’s attorneys took possession of documents from Chand that corroborated the accusations of fraud, informed Front Gate of the accusation, and sought additional documents from Front Gate in discovery. Front Gate claimed that Chand stole the documents from Front Gate, and sought to prevent the documents from being used at trial.
In support of its claims, Front Gate sought to depose the attorney for Fireman’s that was contacted by Chand regarding the circumstances under which she received the documents, including her communications with other attorneys at the firm and the private investigator retained to confirm Chand’s accusations. A discovery referee ruled that Dubbs must answer those questions, based on the idea that attorney-client privilege applies only to communications between the attorney and the client, not to agents or members of a firm about client matters. In addition, the referee held that, because the communications were not reduced to writing and did not contain legal conclusions, they did not get work-product protections. The trial court upheld the rulings of the referee.
The California Court of Appeal overturned the referee on both counts. On the attorney-client privilege issue, the Court noted that Evidence Code § 952 protects the disclosure of any “legal opinion” to a person for the purpose of “furthering the interests of the client” or when it is “reasonably necessary.” The court held that Dubbs’s communication with other attorneys and the investigator fits within these bounds to the extent it reflects any of Dubbs’s legal analysis.
Even if the communications did not reflect legal analysis per se, the court held that the communications were covered under work-product because they reflected attorney opinions. Work product is dependent on the nature of the communications or opinions contained, not on the form in which the communications are recorded or codified, the court said. If the communication reflects attorney opinions then it gets absolute work product protection, regardless of the form the opinions take.