Filed 3/16/18 Fitzpatrick v. Superior Court CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


DENNIS M. FITZPATRICK et al.,
Petitioners,
v.
THE SUPERIOR COURT OF ALAMEDA COUNTY,
Respondent;
UNION PACIFIC RAILROAD COMPANY,
Real Party in Interest

A151122

(Alameda County
Super. Ct. No. RG16816408)



I. INTRODUCTION
Plaintiff Dennis Fitzpatrick sued Union Pacific Railroad Company (Union Pacific), alleging that he suffered personal injuries caused by exposure to asbestos and other toxic chemicals while working for Union Pacific’s predecessor. Fitzpatrick moved to compel Union Pacific to produce documents that Fitzpatrick authored or received when he worked as a legal consultant for its predecessor company. All of these documents, according to Union Pacific, are protected from disclosure under the attorney-client privilege and work product doctrine. The trial court, in an apparent attempt to reach a middle ground, declined to address whether the documents are privileged, and instead ruled that they must be disclosed to Fitzpatrick for the limited purpose of allowing him to review them prior to his deposition, but not retain them.
Neither party was satisfied. Each petitioned for a writ of mandate, with Fitzpatrick arguing that the trial could should have reached the merits of whether the documents are privileged, and Union Pacific, for its part, arguing that the documents are privileged and may not be ordered disclosed even for a limited purpose. We shall grant Fitzpatrick’s petition in part and direct the trial court to address whether the documents are privileged. In so ruling, we shall provide guidance to the trial court explaining why, should it find that any of the challenged documents are privileged, it cannot order their production, even for a limited purpose. Our opinion thus resolves both parties’ writ petitions.
II. FACTUAL AND PROCEDURAL BACKGROUND
Fitzpatrick was a long-time employee of Union Pacific’s predecessor, Southern Pacific Railroad Company (Southern Pacific). From 1956 to 1993, except for three years in the military, Fitzpatrick worked at Southern Pacific facilities in Los Angeles, Sacramento, and Roseville. He held various roles, including electrician, electrical foreman, mechanical scheduler, general foreman, and quality control manager. From 1983 to 1993, he worked as a “special analyst” in Southern Pacific’s legal department, where he helped with asbestos matters and asbestos litigation.
Shortly after his retirement, Fitzpatrick brought two lawsuits against Southern Pacific: one for personal injuries based on his hearing loss, and one for business interference based on Southern Pacific’s alleged attempts to prevent him from working as a consultant on railroad injury cases. In 1995, Fitzpatrick settled the lawsuits together for $75,000. In connection with the settlement, he signed a general release of all known and unknown claims, including claims arising out of any exposure to toxic chemicals and fumes, except that the release excluded asbestos-related claims.
In 2016, Fitzpatrick filed this lawsuit against Union Pacific, alleging that he developed lymphoma as a result of being exposed to asbestos and other toxic chemicals while working at Southern Pacific. He alleged a cause of action under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq., as well as state law causes of action for negligence and fraud. Union Pacific answered, asserting the release signed by Fitzpatrick in 1995 as an affirmative defense. Union Pacific also brought a cross-complaint against Fitzpatrick, alleging that he breached the 1995 release by suing it.
During discovery, Fitzpatrick brought two motions to compel disclosure of documents that Union Pacific withheld on the basis of the attorney-client privilege and the work product doctrine. The documents were listed in two privilege logs: the December 2016 log and the January 2017 log. The December 2016 log listed documents relating to Union Pacific’s contention that the 1995 release precluded Fitzpatrick’s claims in this action. Fitzpatrick wrote or received all of the documents at issue during his work as a special analyst for Southern Pacific’s legal department. Fitzpatrick argued that the privilege did not apply to these documents since he had seen them in the past. Fitzpatrick also argued that Union Pacific waived any privilege attached to these documents by arguing that the release precluded Fitzpatrick’s claims in this action.
Fitzpatrick took a slightly different position with respect to the January 2017 log. That log listed documents relating to alleged health and safety violations and Union Pacific’s remediation efforts. Fitzpatrick wrote or received the majority of them while working at Southern Pacific. As with the documents in the December 2016 log, Fitzpatrick argued that many documents in the January 2017 log are not privileged because he had already seen them. Fitzpatrick also argued that the documents in the January 2017 log are not privileged because the documents did not involve legal matters, were sent to “non-essential” third parties, or were authored by non-legal employees.
For documents in both logs, Fitzpatrick argued that even if the documents are privileged, he should be allowed to review them in order to prepare his case.
The trial court granted Fitzpatrick’s motions in part. The court ordered a limited disclosure of documents authored or received by Fitzpatrick so that he could review them to prepare for his upcoming deposition. The court stated: “[The court] appreciates that [Fitzpatrick], who will soon be expected to testify in deposition regarding matters and events that happened as long ago as the early 1980s, may well be at a disadvantage if he does not have access to the subject documents for the purpose of refreshing his memory before his deposition.” The court ordered that Fitzpatrick could not copy the documents, and could not disseminate the documents or information in them to anyone except himself and his attorneys “for the sole purpose” of refreshing his memory before his deposition. Fitzpatrick was also ordered to return the documents to Union Pacific at the beginning of his deposition.
The court noted that Fitzpatrick raised additional issues regarding whether the documents are privileged. As to these arguments, the court stated that it “expressly makes no findings regarding whether each of the subject documents falls properly within the protections of the attorney-client privilege and/or the attorney work product doctrine, but for purposes of the restricted and limited production pursuant to this order, all of the subject documents are to be treated as though they do.”
Union Pacific petitioned for a writ of mandate, arguing that the trial court could not order a limited production of the documents. We granted Union Pacific’s request for a temporary stay of the trial court’s order and requested preliminary briefing. After we issued the stay and requested briefing, Fitzpatrick filed a petition for writ of mandate arguing the trial court should have addressed his arguments that the challenged documents are not privileged. Our preliminary conclusion was that both petitions had merit. We agreed with Union Pacific that the trial court could not order production of the documents if they are privileged, even for a limited purpose. We also agreed with Fitzpatrick that the trial court should have considered his arguments about why the documents are not privileged because if Fitzpatrick prevailed on his arguments, then the trial court could order the documents produced without limitations.
Our solution was to issue an alternative writ of mandate in response to Fitzpatrick’s writ petition that would have the effect of resolving his petition and Union Pacific’s petition. Specifically, we directed the trial court that it must consider Fitzpatrick’s arguments regarding why the documents are not privileged. We then provided additional guidance to the trial court on how to proceed once it addressed Fitzpatrick’s arguments. We explained that if the trial court determined that any of the challenged documents are not privileged, and the documents are otherwise discoverable, then the court should order Union Pacific to produce them to Fitzpatrick. If, however, the trial court determined that any of the challenged documents are privileged, we said that the court could not order Union Pacific to produce them to Fitzpatrick for any purpose.
After we issued the alternative writ, the trial court held a hearing at which both parties agreed with our directive that the trial court must address whether the challenged documents are privileged. But Fitzpatrick, dissatisfied with the additional guidance we provided, disagreed with our conclusion that the documents could not be produced for a limited purpose if they are privileged. He convinced the court not to comply with the alternative writ, thus placing the matter back before us for plenary consideration.
III. DISCUSSION
A. Legal Landscape
We begin with some well-settled principles. “The attorney-client privilege . . . is described in Evidence Code section 950 et seq., enacted in 1965. (See Evid. Code, div. 8, ch.4, art. 3 [‘Lawyer-client Privilege’].) This privilege no doubt holds a special place in the law of our state. (See Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 . . . [‘The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years.’].) And for good reason: its ‘fundamental purpose . . . is to safeguard the confidential relationship between clients and their attorneys so as to promote full and frank discussion of the facts and tactics surrounding individual legal matters.’ (Ibid. [“the public policy fostered by the privilege seeks to insure ‘the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense” ’].)” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 292 (Los Angeles County Bd. of Supervisors).)
“To this end, Evidence Code section 954 confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.’ A ‘confidential communication,’ moreover, is defined as ‘information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.’ (Evid. Code, § 952.)” (Los Angeles County Bd. of Supervisors, supra, 2 Cal.5th at pp. 292–293.)
The protection provided by the attorney-client privilege is “ ‘absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.’ ” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal. 4th 725, 732.) “ ‘Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship.’ ” (Ibid.) Likewise, under the work product doctrine, any writing “that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories,” sometimes known as core work product, “is not discoverable under any circumstances.” (Code Civ. Proc., § 2018.030, subd. (a); see also Coito v. Superior Court (2012) 54 Cal.4th 480, 488 [work product doctrine provides “absolute protection” to any writing reflecting an attorney’s impressions, conclusions, opinions, legal research, or theories].)
Fitzpatrick asks us to make an exception to the general rule of absolute protection that would allow him and his attorneys to review the challenged documents in the event they are found to be privileged. Specifically, as to the documents that he authored or received, Fitzpatrick maintains that he should have access to them to develop his case and to respond to Union Pacific’s affirmative defenses and cross-complaint. To support his argument, Fitzpatrick relies on a discrete line of cases addressing an in-house attorney’s ability to bring a wrongful termination action against his or her former employer. As we explain, we do not agree that these cases support his contention that he should have access to the challenged documents if they are found to be privileged.
B. The General Dynamics Line of Cases
The cases upon which Fitzpatrick founds his position begin with our Supreme Court’s decision in General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164 (General Dynamics). There, the Court addressed whether an in-house attorney could pursue a wrongful termination claim against his former employer. The Court concluded that an in-house attorney is permitted to pursue such a claim, “provided it can be established without breaching the attorney-client privilege or unduly endangering the values lying at the heart of the professional relationship.” (Id. at p. 1169.) The Court explained that “the contours of the statutory attorney-client privilege should continue to be strictly observed” and “reject[ed] any suggestion that the scope of the privilege should be diluted in the context of in-house counsel and their corporate clients.” (Id. at p. 1190.)
In order to protect the privilege in an action brought by an in-house attorney, the General Dynamics Court stated that trial courts “can and should apply an array of ad hoc measures from their equitable arsenal designed to permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege.” (General Dynamics, supra, 7 Cal.4th at p. 1191.) “The use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and, where appropriate, in camera proceedings, are but some of a number of measures that might usefully be explored by the trial courts as circumstances warrant. We are confident that by taking an aggressive managerial role, judges can minimize the dangers to the legitimate privilege interests the trial of such cases may present.” (Ibid.) The Court warned, however, that “an attorney who unsuccessfully pursues a retaliatory discharge suit, and in doing so discloses privileged client confidences, may be subject to State Bar disciplinary proceedings.” (Ibid.)
Following General Dynamics, the appellate court in Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294 (Fox Searchlight) held that “in-house counsel may disclose ostensible employer-client confidences to her own attorneys to the extent they may be relevant to the preparation and prosecution of her wrongful termination action against her former client-employer.” (Id. at p. 310.) The court based its holding on three grounds. First, the court explained that “[t]he General Dynamics opinion itself contemplates that in a wrongful termination case a limited disclosure of employer-client confidences to the plaintiff’s own attorney will take place.” (Ibid.) The principal concern in General Dynamics about permitting lawsuits by in-house counsel against former employers was “the unwarranted public disclosure of the employer’s secrets.” (Id. at p. 311.) The court believed that an in-house attorney’s disclosure of confidential information to her own attorneys would not result in the public disclosure of the employer’s confidences, given that “[t]he attorneys for the in-house counsel are themselves bound by the rules of confidentiality and attorney-client privilege.” (Ibid.)
Second, the court in Fox Searchlight believed an in-house counsel’s disclosure of employer confidences to her own attorney would not violate counsel’s duty of confidentiality to the employer, “so long as the disclosure is limited to information the in-house counsel reasonably believes is necessary to her attorney’s preparation and prosecution of the case.” (Fox Searchlight, supra, 89 Cal.App.4th at pp. 310–311.) “In-house counsel contemplating a wrongful termination action against her former employer clearly needs to consult with her attorneys on the issue of her former employer’s confidences given the Supreme Court’s warnings of dismissal and possible disciplinary action if client confidences are breached.” (Id. at p. 312.)
Third, the court explained that “fundamental fairness requires the plaintiff be allowed to make a limited disclosure of her former client’s ostensibly confidential information to her own attorneys for purposes of preparing and prosecuting a wrongful termination suit against the former client.” (Fox Searchlight, supra, 89 Cal.App.4th at p. 314.) “If the employer can stifle even this limited disclosure, then General Dynamics is nothing more than a judicial practical joke because, even if in-house counsel succeeds in a wrongful termination action against the former client, she may be sanctioned or lose her license to practice or be sued separately by the former client for breach of fiduciary duty.” (Ibid.)
A similar issue concerning disclosure of privileged information to one’s own attorney arose in Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094 (Chubb). There, an attorney, Tracy Lemmon, filed an employment discrimination lawsuit against her former law firm, as well as against Chubb & Son (Chubb), an insurance company whose insureds were represented by Lemmon. (Id. at p. 1096.) During discovery, Lemmon requested documents from Chubb, and Chubb responded with objections to the extent Lemmon sought information protected by the attorney-client privilege or work product doctrine. (Id. at p. 1099.) Chubb also took the position “that any review and redaction of responsive documents would have to be conducted by the parties themselves (e.g., Chubb and Lemmon)—and not their respective counsel in this employment litigation—because the attorney-client privilege precluded Chubb and Lemmon from disclosing the information even to their attorneys.” (Ibid.)
Lemmon filed a motion to compel, arguing that “the parties . . . must provide their respective attorneys in this employment litigation with all relevant information already in their possession, including what might be arguably protected by the attorney-client privilege or the work product doctrine, so the attorneys could assert all applicable privileges and make appropriate redactions on the parties’ behalf.” (Chubb, supra, 228 Cal.App.4th at p. 1100.) Chubb responded that “the attorneys should not be allowed to see the arguably privileged and confidential documents and information of Chubb’s insureds, because ‘Defendant [(Chubb)] and Plaintiff [(Lemmon)] are duty bound’ to maintain the confidences of Chubb’s ‘third party clients.’ ” (Ibid.) The trial court agreed with Lemon and ruled that the parties “ ‘are permitted to disclose to their respective counsel attorney-client privileged communications and client confidences of third-party clients for the purpose of consulting with their counsel regarding how to proceed in this case[.]’ ” (Id. at p. 1101.)
Chubb petitioned for a writ of mandate. Agreeing with the trial court, the Chubb court denied the petition. The court believed that “the three grounds for the disclosures authorized in Fox Searchlight support the disclosures ordered here.” (Chubb, supra, 228 Cal.App.4th at p. 1108.) “First, as contemplated in General Dynamics and explained in Fox Searchlight, the disclosure of the documents would not be a public disclosure, but a disclosure solely to the attorneys representing the parties in the wrongful termination case. These attorneys would be precluded from further disclosure by the rules requiring attorneys to maintain confidences of their own client, as well as by the court’s order expressly prohibiting further disclosure.” (Ibid.)
“Second, as in Fox Searchlight, the disclosure is limited to information each party reasonably believes is necessary for the attorney’s preparation and representation in the case. [Citation.] According to the trial court’s order, each party may submit privileged or confidential communications ‘for the purpose of consulting with their counsel regarding how to proceed in this case . . . in accordance with the provisos set forth in [Fox Searchlight ].’ ” (Chubb, supra, 228 Cal.App.4th at p. 1108.)
“Third, fundamental fairness requires that Lemmon be allowed to make a limited disclosure to her attorneys to the extent necessary to prepare her claims. [Citation.] Lemmon’s claim is that she was discharged due to her disability rather than her performance; Chubb counters that she was discharged because she engaged in professional misconduct, but then limits Lemmon’s ability to obtain her counsel's assistance in probing this justification, evaluating her work performance, and determining how to proceed, by unilaterally proclaiming that the information is privileged and not to be seen by anyone’s attorneys. An attorney-litigant who is contemplating a wrongful termination action against her former employer must be able to consult meaningfully with counsel to ensure the action can be pursued without a dismissal—and without disciplinary action for improper disclosure of confidences. Attorney-litigants should not be deprived of the right to ‘independent, candid, professional advice about their ethical duties under their particular circumstances.’ ” (Chubb, supra, 228 Cal.App.4th at pp. 1108–1109.)
In addition to these three grounds drawn from Fox Searchlight, the Chubb court concluded that “disclosure of the alleged privileged communications and confidences to the parties’ respective attorneys in this case ultimately helps to protect the privilege and, thus, its holder.” (Chubb, supra, 228 Cal.App.4th at p. 1109.) “If the attorneys representing Lemmon are to assist her in avoiding impermissible public disclosure, ‘it is essential for them to have complete knowledge of all potentially confidential information known to their client and relevant to the litigation,’ as only through full disclosure can they ‘make judgments about what is disclosable and what is not.’ [Citation.] And if the attorneys representing Chubb are to assist against impermissible public disclosure—and equip the court with the factual and legal arguments needed to uphold any claimed privilege—it is essential for them to see the documents containing the allegedly privileged or confidential information too.” (Ibid.)
C. The General Dynamics Line of Cases Does Not Apply Here.
Fitzpatrick contends his action against Union Pacific is “in all material respects” just like Chubb and Fox Searchlight. We disagree. The plaintiffs in those cases were in-house attorneys whose employment-related causes of action were connected to their responsibilities as in-house attorneys. They wanted to share information with their attorneys to help prepare and prosecute their case and additionally, in Chubb, to allow the attorneys to assess whether material could be withheld from discovery as privileged. The limited disclosures of privileged information contemplated by those cases were intended to “permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege.” (General Dynamics, supra, 7 Cal.4th at p. 1191; see also Fox Searchlight, supra, 89 Cal.App.4th at p. 310 [stating that General Dynamics was intended to “strike a balance between protecting the employer’s sensitive information and permitting the former in-house counsel to maintain her suit”].) Fitzpatrick’s lawsuit does not present the same set of concerns. His alleged injuries are not related to his role as a legal consultant, but instead allegedly arise from exposure to chemicals in other roles he held prior to becoming a legal consultant. Fitzpatrick is also not seeking to provide information already in his possession to his attorneys so that they can help prepare his case. Instead, he wants access to documents in Union Pacific’s possession.
Given that Fitzpatrick’s lawsuit is fundamentally different than those of the in-house attorneys in Fox Searchlight and Chubb, the justifications for limited disclosure of information to the plaintiffs’ own attorneys in those cases do not apply here. First, Fitzpatrick has not shown that he will have the same problems of proof that an in-house attorney might have in pursuing a wrongful termination claim, since his alleged injuries are not connected to his legal consultant role. Fitzpatrick claims that “Union Pacific gets to assert all manner of claims about what happened at the Southern Pacific worksite, but then shield the evidence supporting (or not supporting) those claims behind assertions of ‘privilege.’ ” But if Union Pacific is putting privileged information at issue to defend itself and support its defenses, Fitzpatrick already has a remedy: he can argue Union Pacific has waived any privilege. (See Mitchell v. Superior Court (1984) 37 Cal.3d 591, 604 [fundamental fairness may require disclosure of privileged information when a party places in issue a communication that “goes to the heart of the claim in controversy”].) There is no need create an additional exception that allows him to review privileged information if Union Pacific is trying to use the same information against him. Nor can it be said that disclosure would ultimately help protect the privilege. (Chubb, supra, 228 Cal.App.4th at p. 1109.)
Finally, and most important, the severity of the consequences of non-disclosure to the Chubb and Fox Searchlight plaintiffs—inability to proceed at all with their claims—called for a balance to be struck favoring a narrow exception to what is otherwise an absolute privilege. No such argument can be made here. Fitzpatrick is not claiming that he needs to consult with his attorneys about privileged information “to ensure the action can be pursued without a dismissal—and without disciplinary action for improper disclosure of confidences.” (Chubb, supra, 228 Cal.App.4th at p 1109.) Rather, he wants access to the documents to develop his case and to respond to Union Pacific’s affirmative defense and cross-complaint. The fact that the information might be relevant does not, by itself, give Fitzpatrick the right to the information. (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal. 4th at p. 732 [privilege applies even if it results in suppression of relevant evidence].) The absolute character of the attorney-client privilege (Evid. Code, § 950 et seq.) and of core work product (Code Civ. Proc., § 2018.030, subd. (a)), must, in practice, be distinguished from the qualified protection provided for non-core work product (id., § 2018.030, subd. (b)). We recognize that Fitzpatrick feels he needs access to attorney-client information to prepare himself for deposition, but if a showing of legitimate need were all that was required to gain access to attorney-client privileged information and core work product, the absolute confidentiality protection surrounding that type of information would be no different in kind from the protection for non-core work product.
We view the General Dynamics line of cases as sui generis and not readily subject to extension in the field of attorney-client privilege and attorney work product. On this record—consistent with conventional application of privilege rules—we conclude that Fitzpatrick has not demonstrated he should have even limited access to Union Pacific’s privileged documents. In the event the trial court determines that any of the challenged documents are privileged, Union Pacific has no obligation to disclose them to Fitzpatrick for any purpose. The course Fitzpatrick must take, if he is eventually to see any of the challenged documents, is to demonstrate that they are not in fact privileged or not subject to core work product protection.
IV. DISPOSITION
Fitzpatrick’s petition for a writ of mandate is granted in part and denied in part. Let a peremptory writ of mandate issue directing respondent superior court to vacate and set aside the portion of its March 17, 2017 orders for Union Pacific to produce the challenged documents so that Fitzpatrick could review them to prepare for his upcoming deposition, and to conduct further proceedings in accordance with this opinion. The stay previously issued by this court shall be dissolved upon the issuance of the remittitur. The parties shall bear their own costs in this writ proceeding.
An order disposing of Union Pacific’s petition as moot will be forthcoming.






_________________________
Streeter, J.


We concur:


_________________________
Ruvolo, P.J.


_________________________
Schulman, J.*