Grover v. SUPERIOR COURT OF SAN MATEO CTY.

California Court of Appeal Jun 26, 1958 No. Civ. 18154Published

Before: Draper

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Holding. The court held that a party who submits to a physical examination by an opposing party's physician is entitled to a copy of the resulting medical report, as the act of procuring such an examination constitutes a waiver of any applicable attorney-client privilege.

Issues

Whether a medical report from an examination by an opposing party's physician is protected by the attorney-client privilege.
Whether the discovery procedures of the 1957 amendments apply to a physical examination conducted before the statute's effective date.
Whether a party is entitled to a copy of a medical report when the examination was conducted by stipulation rather than court order.

Disposition. remanded

Quotations verified verbatim against the opinion

“The act does govern the proceedings here in issue.”

“one who submits voluntarily to examination by his adversary’s physician, without requiring a formal order therefor, is entitled to a copy of the examining physician’s report.”

DRAPER, J.

This mandamus proceeding concerns application of discovery procedures authorized by 1957 amendments to the Code of Civil Procedure (Stats. 1957, chap. 1904, pp. 3321-3336).

Petitioner, as plaintiff, filed a personal injury action April 1, 1957 against Paddock Engineering Company, the real party in interest in the present proceeding. Counsel for plaintiff and defendant stipulated that Dr. O’Connor, acting for defendant, could conduct a physical examination of plaintiff. The examination was had December 5, 1957. At some unspecified date thereafter, Dr. O’Connor prepared and delivered to defendant’s counsel his written report of that examination. At pretrial conference January 7, 1958, plaintiff orally and in writing requested a copy of the report. His request was refused. His noticed motion to require such delivery was heard and denied January 24, 1958. Plaintiff then served upon Dr. O’Connor a subpoena to take deposition. Before the date noticed for the deposition, defendant sought, and after hearing obtained, an order of respondent court that the deposition not be taken. (Code Civ. Proe., § 2019, subd. (b).) At the same time, the court denied plaintiff’s noticed motion to inspect and take a copy of Dr. O’Connor’s report. (Code Civ. Proc., § 2031, subd. (a).) Plaintiff now seeks writ of mandamus requiring respondent court to order delivery of a

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copy of the report or, in the alternative, to permit taking of the deposition of Dr. O’Connor.

Defendant contends, first, that Dr. O’Connor’s report is within the attorney-client privilege, and thus cannot be reached either by inspection of his report or by taking his deposition; and, second, that the discovery procedures do not, in any event, apply here because the physical examination was had before January 1, 1958, the effective date of the discovery amendments (Stats. 1957, p. 3336).

"There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined as a witness in the following cases: ... 2. Attorney and client. An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him. ...” (Code Civ. Proc., § 1881.) The purpose of the privilege is to encourage a client to make a full disclosure to his attorney without fear that others may be informed.

Grover v. SUPERIOR COURT OF SAN MATEO CTY.

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DRAPER, J.

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