MacK v. Superior Court

California Court of Appeal Feb 14, 1968 No. Civ. 24998Published

Before: Christian

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Holding. An appraiser's opinion commissioned by an attorney for trial preparation constitutes protected work product, and the party seeking discovery must demonstrate that denial would result in unfair prejudice or injustice to overcome this privilege.

Issues

Whether a client's declaration is sufficient to establish the attorney work product privilege without a supporting declaration from the attorney.
Whether an appraiser's opinion obtained by counsel for trial preparation is protected from discovery as attorney work product.

Disposition. remanded

Quotations verified verbatim against the opinion

“The work product privilege was created for the protection of the client as well as the attorney and there is no reason why a party’s declaration, asserting facts apparently within personal knowledge, should not be as effective as a declaration”

“material of a derivative character, such as diagrams prepared for trial, audit reports, appraisals, and other expert opinions, developed as a result of the initiative of counsel in preparing for trial, are to be protected as work product.”

[9]

CHRISTIAN, J.

Petitioners, landowner-defendants in an eminent domain proceeding, seek a writ of prohibition to restrain respondent court from enforcing an order requiring petitioners to disclose, in answer to interrogatories, the following information about a real estate appraisal obtained by petitioners’ former attorney: (1) the appraiser’s name and address; (2) the date he was hired; (3) whether he rendered an opinion of the fair market value of the property sought to be condemned; and (4) the appraiser’s opinion of the fair market value of the property. In opposition to real party in interest State of California’s motion in the superior court to compel answers to these interrogatories, petitioners filed their joint declaration, under penalty of perjury, asserting that their former attorney did hire a real estate appraiser to assist him in forming an opinion about the case. The declaration continued:

“ [A] 11 of the information obtained by the said appraiser was obtained solely and exclusively for the information and eyes of our said attorney; and was at all times treated as confidential . . . that the information developed by said appraiser was not for the purposes of obtaining testimony for trial but solely and exclusively for the information of the [attorney], and declarants do not plan to call said appraiser as a witness in the trial of this action. ’ ’

Nevertheless the superior court ordered petitioners to answer.

Petitioners claim the protection of the statutory privilege covering an attorney’s work product. See McCoy,

California Civil Discovery Work Product of Attorneys

(1966) 18 Stan.L. Rev. 783 for a review of the context of case law in which the Legislature in 1963 (Stats. 1963, ch. 1744) expressly sanctioned the nondiscoverability of an attorney’s work product. By that enactment Code of Civil Procedure section 2016 was amended to include a provision that1 ‘ The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” The same amendment added subdivision (g):

MacK v. Superior Court

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CHRISTIAN, J.

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