Trade Center Properties, Inc. v. Superior Court

DRAPER, J.

By this proceeding in mandamus, petitioner seeks to compel the trial court to permit taking of the deposition of opposing counsel.

Petitioner, as plaintiff, brought an action against Charles and Sidney Sehonfeld for services allegedly rendered in procuring a loan from W. 0. Files and Company. Defendants’ attorney then took a statement from the president of W. 0. Files and Company. Petitioner secured issuance of a subpoena duces tecum requiring defendants’ attorney to appear for the taking of his deposition and to bring with him copy of the Files’ statement, “together with copies of any and all records and documents used or examined” during the taking

[411]

of that statement. Defendants moved for an order that the deposition not be taken (Code Civ. Proc., § 2019, subd. (b) (1)). The motion was granted, and this petition for writ of mandate was filed. Because the issue appeared to be of general interest, and had not been determined by an appellate court of California, we issued an alternative writ.

Defendants in the pending action, real parties in interest here, first argue that any and all information obtained by their attorney from Piles is within the attorney-client privilege. The contention reveals a gross misunderstanding of that privilege. It extends only to “any communication made by the client to’’ his attorney. Piles, who was either the lender or an independent contractor procuring the loan as a broker and for a commission, is not a party to the pending action nor the client of defendants’ counsel. No conceivable extension of the broadest view of the language of prediseovery cases relied upon by real parties in interest (see

Holm

v.

Superior Court,

42 Cal.2d 500 [267 P.2d 1025, 268 P.2d 722]) can extend the attorney-client privilege to the communications of the independent nonparty witness here involved.

However, sound reasons of policy support the trial court’s determination that the deposition of opposing counsel should not be taken. The confusion which would result from attempted use at trial of an attorney’s statement as to what was said by a witness interviewed by him is cogently described in the concurring opinion of Mr. Justice Jackson in