MITCHELL v. SHELL OIL COMPANY

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Court of Appeal, Fifth District, California.

Gary A. MITCHELL et al., Petitioners, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent. SHELL OIL COMPANY et al., Real Parties in Interest.

Civ. F2997.

Decided: February 21, 1984

Stemple & Boyajian, Michael Kramer and Gordon Stemple, Los Angeles, for Petitioners. No appearance for Respondent. Hardin, Cook, Loper, Engel & Bergez, Gennaro A. Filice, III, and Matthew S. Conant, Oakland, O'Connor, Cohn, Dillon & Barr and Mark Oium, Glenn A. Friedman, Sedgwick, Detert, Moran & Arnold, Stephen W. Jones, Berridge R. Marsh and Marie J. Sovey, Landels, Ripley & Diamond, James A. Bruen and Stephen C. Lewis, San Francisco, for real parties in interest.

OPINION

This matter comes before us on petitioners' petition for writ of mandate or prohibition, stay order and other appropriate relief from an order of respondent Superior Court to compel answers to deposition questions propounded by real parties in interest to petitioner Bette Mitchell which she declined to answer on instructions of counsel.   This court issued an order to show cause why the relief prayed for in the petition should not be granted and issued a stay order pending determination of the petition.

STATEMENT OF FACTS

Gary A. Mitchell and Bette Gae Mitchell are two of more than one hundred plaintiffs who reside near the Thompson-Hayward Chemical plant near Fresno, California.   Petitioners and the other plaintiffs have filed lawsuits alleging contamination of the ground water in the vicinity of their homes.   Petitioners allege the underground aquifer has been contaminated by the chemical dibromochloropropane (DBCP) which was used as an agricultural soil fumigant to kill microscopic, parasitic root worms known as nematodes.   Petitioners sued a number of entities including the real parties in interest who manufactured, marketed and distributed DBCP and other involved chemicals.

Petitioners' second amended complaint contains seven causes of action for personal injuries and property damage, including intentional infliction of emotional distress.   In petitioners' moving papers they assert the water contamination has “occasioned petitioners considerable emotional pain, anguish and distress, since they are aware that DBCP and the other chemicals are highly toxic and carcinogenic and can produce sterility and genetic damage.”

Real party T.H. Agriculture and Nutrition Company, Inc., propounded a number of interrogatories to petitioner Bette Mitchell.   The interrogatories and answers relevant to the instant case are selectively reprinted below:

“INTERROGATORY NO. 29:

“Have you ever read or heard any warnings of any kind about DBCP?   If so, please state as to each such warning:

“a. Was it written or oral?

“b. The specific nature of the warning;

“c. The name and address of the person or organization who issued the warning;

“d. The date(s) you read or heard the warning(s);

“e. The name and address of the custodian of all written warnings.”

“ANSWER TO INTERROGATORY NO. 29

“a. Written and oral.

“b. Physician recommended filter for well to avoid cancer in family members;  Dept. of Health recommended same;  media articles stating link between DBCP and cancer, infertility and defects.

“c. Robert W. Lusk, M.D., 6700 North First St., Suite 114, Fresno, Ca. 93710.   Cal. Dept. of Health Services, 5545 E. Shields, Fresno, Ca. 93727.   Fresno Bee articles.  ‘American Health’, magazine article, July-August 1982 issue.   Attorneys, covered by attorney-client privilege

“d. Approximately May of 1981 to present.

“e. Myself.”

“․

“INTERROGATORY NO. 36:

“Have you ever discussed with any person (other than with your attorney, in private) any warnings of any kind about possible dangers or side effects which could result from exposure to DBCP?   If so, for each such discussion state:

“a. The location where the discussion occurred;

“b. The date of the discussion;

“c. The names and addresses of all persons present;

“d. The topics discussed;

“e. The contents of the warnings that were discussed;

“f. Whether the warning(s) was(were) written or oral;

“g. The name of the person or organization who issued the warning(s) and the date the warning(s) was(were) issued;

“h. If any notes or other written memoranda referring to the discussion exist, please identify and provide the name and address of the present custodian.”

“ANSWER:

“36.  Have discussed with friends, family, neighbors, physicians, attorneys;  cannot recall dates on specific discussions.”

On March 23–24 and May 2–3, 1983, the real parties took the deposition of petitioner Bette Gae Mitchell.   During her deposition she stated that all the sources of information she had about DBCP contributed to her distress as evidenced by the following questions propounded to petitioner and her answers:

“Q. Is it true that all of the various sources of information that you have about DBCP have contributed in one way or another to the emotional distress that you suffer over the presence of DBCP in your water?

“MR. KRAMER:  Which sources are you alluding to?

“THE WITNESS:  You're talking about all the sources I've ever had?

“MR. CONANT:  Right.

“A. Have they contributed to my emotional—you're talking about the letters I've gotten from the State and everything?

“Q. I'll include those.

“A. Well, yes, because it's all pertaining to me.   And that's my only way of finding out anything, is reading it or seeing it or something.”

During the course of that deposition, real parties sought information about the dates, times and other circumstances of Bette Mitchell's conferences with her attorneys.   Real parties sought to elicit details about the nature and content of any warnings, information or documents she received from her attorneys regarding the health effects of DBCP.   As to each of these 21 questions, petitioner's attorney invoked the attorney-client privilege and instructed Bette Mitchell not to answer.

On August 9, 1983, the Shell real parties moved respondent Superior Court for an order to compel answers to the questions which Bette Mitchell declined to answer on instructions of counsel.   Real parties contended these questions were critical to the issues of emotional distress causation and were either not privileged from the outset, or alternatively, any privilege that existed had been waived.   Respondent Superior Court granted real parties' motion to compel answers to each of the following questions:

“QUESTION NO. 1:  What percentage of your—of the warnings that you have received have come from your attorneys?

“QUESTION NO. 2:  When did you receive warnings from your attorneys with respect to the DBCP?

“QUESTION NO. 3:  On how many different occasions did you receive warnings from your attorneys with respect to DBCP?

“QUESTION NO. 4:  On those occasions when you received warnings from your attorneys with respect to DBCP, who was present?

“QUESTION NO. 5:  When did you first meet Mr. Kramer here?

“QUESTION NO. 6:  Is it true that your attorneys warned you about DBCP from May of 1981 to present, as is indicated in subpart D of your answers to interrogatories

“QUESTION NO. 7:  Did your attorneys warn you orally or in writing concerning DBCP?

“QUESTION NO. 10:  And what, in fact, did your attorneys tell you when they warned you about DBCP?

“QUESTION NO. 12:  And is it true that the warnings that your attorneys gave you about DBCP contributed to that anxiety?

“QUESTION NO. 13:  One of the sources of information you have about DBCP is information that you gained from your attorneys;  is that correct?

“QUESTION NO. 15:  Mrs. Mitchell, have you received any written information from your attorney about health effects of DBCP?

“QUESTION NO. 16:  Have you received any written information from your attorney about the potential of DBCP to cause cancer in humans?

“QUESTION NO. 17:  Have you received any written information from your attorney about the potential of DBCP to cause cancer in animals?

“QUESTION NO. 19:  Have you received any other relevant information from your attorney about the potential for DBCP to cause cancer in humans?

“QUESTION NO. 20:  Have you received any other relevant information from your attorneys about the human health effects of DBCP?”

The respondent Superior Court indicated questions one through seven, twelve and thirteen had nothing to do with the content of the communication and were not subject to the privilege in any event.   The court further indicated questions 10, 16, 17, 19 and 20 had to do with consent.

DISCUSSION

I. IS AN EXTRAORDINARY WRIT THE APPROPRIATE METHOD TO SEEK RELIEF FROM DISCOVERY ORDERS?

Petitioners contend an extraordinary writ is the appropriate method for obtaining immediate review of the discovery order in the instant case.

In Lund v. Superior Court (1964) 61 Cal.2d 698, 709, 39 Cal.Rptr. 891, 394 P.2d 707, the Supreme Court, in dictum, stated the “better view is that an order made for the purposes of furthering discovery proceedings, or granting sanctions for refusal to make discovery, is not appealable.”   The Supreme Court has further held that “the prerogative writs should only be used in discovery matters to review questions of first impression that are of general importance to the trial courts and to the profession, and where general guidelines can be laid down for future cases.”  (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169, 84 Cal.Rptr. 718, 465 P.2d 854;  quoting from Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 185–186, fn. 4, 23 Cal.Rptr. 375, 373 P.2d 439.)

Pacific Tel. & Tel. Co. involved an objection to the trial court's grant of discovery on irrelevancy grounds.   In footnote 11 of its opinion the Supreme Court made it clear an objection on irrelevancy grounds was of an entirely different nature than a challenge to the grant of discovery when the trial court's order allegedly violates a privilege of the petitioning party.   (Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d 161, 170, fn. 11, 84 Cal.Rptr. 718, 465 P.2d 854.)  “One of the prime purposes of the Discovery Act is to expedite the trial of the action.   This purpose will be defeated if appellate courts entertain petitions for prerogative writs by which a review of the orders of trial courts in discovery proceedings are sought and which do not clearly demonstrate an abuse of discretion by the trial court where discovery is denied, or a violation of privilege ․ where discovery is granted․”  (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 415, 15 Cal.Rptr. 119, 364 P.2d 295;  quoting from Ryan v. Superior Court (1960) 186 Cal.App.2d 813, 816–817, 9 Cal.Rptr. 147.)

Moreover, relief by extraordinary writ has been deemed both appropriate and necessary where an abuse of discretion or violation of a privilege by the trial court is clearly demonstrated.

“The need for the availability of the prerogative writs in discovery cases where an order of the trial court granting discovery allegedly violates a privilege of the party against whom discovery is granted, is obvious.   The person seeking to exercise the privilege must either succumb to the court's order and disclose the privileged information, or subject himself to a charge of contempt for his refusal to obey the court's order pending appeal.   The first of these alternatives is hardly an adequate remedy and could lead to disruption of a confidential relationship.   The second is clearly inadequate as it would involve the possibility of a jail sentence and additional delay in the principal litigation during review of the contempt order.   Thus, the use of the preogative writ in a case such as this is proper.”  (Roberts v. Superior Court (1973) 9 Cal.3d 330, 336, 107 Cal.Rptr. 309, 508 P.2d 309.)

 In the instant case, petitioners' petition for extraordinary relief is the appropriate method of obtaining review of the discovery order since both abuse of discretion and denial of a privilege is asserted.

II. IS EXTRAORDINARY RELIEF REQUIRED HERE?

 A. INTRODUCTION

Petitioner contends that respondent Superior Court has enunciated a sweeping, unrestricted and ill-advised exception to the attorney-client privilege.

Evidence Code section 954 provides in relevant part:

“Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

“(a) The holder of the privilege;

“(b) A person who is authorized to claim the privilege by the holder of the privilege;  or

“(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure․”

 This court has held the basic policy behind the attorney-client privilege is to promote the relationship between attorney and client by safeguarding the confidential disclosures of the client and the advice given by the attorney.   Although the weight of authority generally requires strict construction of evidentiary privileges (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 396, 15 Cal.Rptr. 90, 364 P.2d 266), this district has held the basic policy supports a liberal construction in favor of the exercise of the privilege.  (Benge v. Superior Court (1982) 131 Cal.App.3d 336, 344, 182 Cal.Rptr. 275;  citing American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 593, 113 Cal.Rptr. 561;  Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 94, 146 Cal.Rptr. 171;  Witkin, Cal.Evidence (2d ed. 1966) Witnesses, § 795, p. 740.)   Although invocation of the privilege may sometimes result in the suppression of relevant evidence, it is necessary to protect the client in making a full disclosure of facts to his attorney.   (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235, 37 Cal.2d 227, 231 P.2d 26.)

 Under the Civil Discovery Act of 1957 (Code Civ.Proc., §§ 2016–2036.5), any party may take the testimony of any person, including a party, by deposition upon oral examination for the purpose of discovery or for use as evidence in the action or for both purposes.   Unless otherwise ordered by the court, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.   This is true whether it relates to the claim or defense of the examining party or to the claim or defense of any other party.   The scope of examination includes the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts.   If the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence, one may not object that the testimony will be inadmissible at the trial.   All matters which are privileged against disclosure upon the trial under California law are privileged against disclosure through any discovery procedure.  (Code Civ.Proc., § 2016, subds. (a)(b).)

 The discovery act introduced into California a system of interdependent discovery procedures to accomplish two broad purposes.   The first purpose was to expedite both trial and trial preparation by encouraging the disclosure of evidence.   The intent was to remove the “game” element from trial preparation while yet retaining the adversary nature of the trial itself.   The second broad purpose of discovery was the just resolution of litigation through pretrial settlement.   The discovery process accomplishes this by educating the parties about their claims and defenses before trial, by exposing false or sham claims or defenses and by providing parties with facts necessary to make an informed case evaluation.  (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d 355, 375–377, 15 Cal.Rptr. 90, 364 P.2d 266;  California Civil Discovery Practice (CEB 1975) §§ 1.2–1.4, pp. 4–6.)

 The major limitation imposed by the discovery act on its broad criteria for discoverability is that which exempts privileged information from the process of pretrial disclosure.   Accordingly, no matter how relevant information may be to the subject matter or issues of a lawsuit, it is protected against discovery if it falls within the coverage of one of the evidentiary privileges.  (2 Hogan, Modern California Discovery (3d ed. 1981), § 11.01, pp. 236–237.)

 The holder of the attorney-client privilege (that person entitled to claim it) is the client.  (Evid. Code, §§ 953, subd. (a) and 954, subd. (a).)  The client alone may waive the privilege.   In claiming the privilege the attorney does so on behalf of the client and must make the claim unless instructed otherwise.  (Witkin, Cal.Evidence (2d ed. 1966) Witnesses, § 797, p. 742;  citing Evid.Code, §§ 953, 954, 955.)

 The privilege protects communications transmitted during the course of the attorney-client relationship.   These communications include information transmitted between the client and lawyer, advice given by the lawyer, or a legal opinion formed and advice given by the lawyer in the course of that relationship.  (Evid.Code, § 952.)  “[A]lmost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication, and the only question will be whether, in the circumstances of the case, it was intended to be done as such.”  (City and County of S.F. v. Superior Court, supra, 37 Cal.2d 227, 235–236, 37 Cal.2d 227, 231 P.2d 26;  quoting 8 Wigmore, Evidence (3d ed. 1940), § 2306, p. 590.)   The express inclusion of “a legal opinion” in section 952 of the Evidence Code precludes inquiry into the lawyer's uncommunicated impressions and conclusions about the case.  (8 Cal.Law Revision Com. Reports, Recommendations, and Studies (1967) p. 121.)

 The privilege includes only confidential communications and does not attach to communications the client does not intend to become confidential.   (Holm v. Superior Court (1954) 42 Cal.2d 500, 507, 267 P.2d 1025;  disapproved on other grounds in Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176, 23 Cal.Rptr. 368, 373 P.2d 432.)   The communication must be made “․ 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 ․”  (Evid.Code, § 952.)

 Evidence Code section 917 creates a presumption of confidentiality for all such communications.   Thus, the trial judge must find the communication was made in confidence unless he is persuaded by the opponent of the claim of privilege the communication was not intended to be confidential.  (2 Jefferson, Cal.Evid. Benchbook (2d ed. 1982), § 35.4, p. 1320.)   With certain exceptions inapplicable here, the court may not require disclosure of confidential material before ruling on the claim of privilege.   (Evid.Code, § 915;  Romo v. Southern Pac. Transportation Co. (1977) 71 Cal.App.3d 909, 922, 139 Cal.Rptr. 787.)

 B. DID PETITIONERS WAIVE THE PRIVILEGE AS TO QUESTIONS 6, 7, 12 AND 13 BY DISCLOSING ALL OR A SIGNIFICANT PORTION OF THEIR CONTENT?

In response to petitioners' broad assertion of privilege, real parties argue Bette Mitchell should be compelled to answer deposition questions 6, 7, 12 and 13 because she has already disclosed the information in interrogatory answers, thereby waiving the claim of privilege.   Real parties' argument is persuasive.   Petitioner's broad assertion of privilege over information sought in the deposition encompasses certain facts she previously disclosed.

Question 6 and 13 seek petitioner's confirmation that her attorneys provided her information and warnings about DBCP.   This information was disclosed in petitioner's responses to real parties' interrogatories.   There she listed her attorneys as persons who issued her warnings about DBCP (interrogatory no. 29, propounded by real party T–H Agriculture).   Question 7 asked whether petitioner's attorneys warned her orally or in writing about DBCP.   In her response to interrogatory 29, petitioner indicated she had received written and oral warnings about DBCP.   However, she did not specify the type of warning received from each source.   Question 12 asked whether the DBCP warnings issued by petitioner's attorneys contributed to her anxiety.   In response to a similar deposition question by the same attorney, petitioner acknowledged all of the various sources of information she had about DBCP contributed in one way or another to her emotional distress.

 The right of any person to claim the privilege is waived with regard to a communication if any holder of the privilege without coercion has disclosed a significant part of the communication.  (Evid.Code, § 912.)   Here, petitioner disclosed the entirety of the communication sought by questions 6 and 13, and a significant part of the communications sought by questions 7 and 12.   Without citing authority, petitioner argues disclosure that a privileged communication has occurred, without revelation of the content, cannot qualify as a waiver.   Petitioner reasons that mere invocation of the privilege would constitute a waiver, an absurd result.   Petitioner misunderstands the position of the real parties.   For purposes of these four questions, the real parties in interest do not argue a waiver of the privilege as to the content of the communications.   Rather, they argue a waiver of the privilege as to the fact and nature of the communications.

Shell real parties cite In re Lifschutz (1970) 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557 as somewhat analogous to the instant case.   In Lifschutz, plaintiff in a personal injury action disclosed during a deposition that he had consulted petitioner psychiatrist for treatment.   The defendant then subpoenaed petitioner for deposition but the latter refused to disclose whether plaintiff had ever consulted him or been his patient.   The Supreme Court found a waiver of the psychotherapist-patient privilege because the holder disclosed the fact of his consultation with petitioner at the prior deposition.

 The facts of the instant case are even more compelling.   Petitioner initially disclosed the requested information in her answers to interrogatories and real parties are now merely seeking confirmation and clarification of her answers.   The fact that questions have been asked previously during discovery does not justify petitioner's refusal to answer.  (See Coy v. Superior Court (1962) 58 Cal.2d 210, 217–219, 23 Cal.Rptr. 393, 373 P.2d 457.)   Depositions and interrogatories are different procedures which litigants are entitled to use in the same proceeding for pretrial discovery.   Prior use of one of these procedures does not exclude subsequent use of the other.   (Darbee v. Superior Court (1962) 208 Cal.App.2d 680, 686, 25 Cal.Rptr. 520.)

 Petitioner has waived her right to claim the privilege as to these four questions by prior disclosure of all or a significant part of the communications at issue.

 C. ARE DEPOSITION QUESTIONS REGARDING CIRCUMSTANCES SURROUNDING THE ATTORNEY–CLIENT RELATIONSHIP PRIVILEGED?

Real parties argue circumstances surrounding the attorney-client relationship are not communications protected by the attorney-client privilege.   At deposition, real parties asked petitioner Bette Mitchell the percentage of DBCP warnings she received from her attorney (question 1);  when and how many times she received such warnings from her attorneys (questions 2, 3);  the identity of persons present on those occasions when petitioner received warnings from her attorneys (question 4);  and the date she first met one of her attorneys, Michael A. Kramer (question 5).

 The last question may be disposed of first.   In Coy v. Superior Court, supra, 58 Cal.2d 210, 219–220, 23 Cal.Rptr. 393, 373 P.2d 457, petitioner was the plaintiff in an abuse of process action.   The respondent superior court had denied his motions to require answers to certain interrogatories and petitioner sought a writ of mandate to review the superior court order.   One of the interrogatories asked defendant to identify the date he first met with his attorney concerning the matter underlying the abuse of process action.   The Supreme Court held the question did not seek to elicit any communication or conversation between the defendant and his attorney.   The date was not a matter “communicated” by the client to his attorney in the course of their professional relationship, or at all.   The Supreme Court ruled the matter was not within the purview of the attorney-client privilege, even though it referred to that relationship.   Therefore, in the instant case the date petitioner first met her attorney is not within the purview of the privilege although it refers to the attorney-client relationship.

 The Coy reasoning is equally applicable to deposition questions 1 through 4.   These questions do not seek information transmitted between attorney and client in confidence during the course of their relationship.   They do not ask for revelation of oral or written verbal communication between attorney and client (2 Jefferson, Cal.Evid. Benchbook, supra, § 40.1, p. 1422), nor do they seek to elicit actions, signs, or other means of transmitting information between attorney and client.  (City & County of S.F. v. Superior Court, supra, 37 Cal.2d 227, 235, 231 P.2d 26.)   These questions do not relate to “communications” between petitioner and her attorney and therefore are not within the attorney-client privilege.   Petitioners' contention that real parties' questions go far beyond the narrow purpose of seeking all of the dates in which petitioners and their attorneys conferred, the names of all persons present and whether each such communication was oral or written, that real parties in interest want a “roving commission,” is equally without merit.

Code of Civil Procedure section 2016, subdivision (b) provides a deponent may be examined regarding any matter relevant to the subject matter in the pending action.   The “subject matter of the action” has been defined as the circumstances and physical facts out of which the action arises and in relation to which the suit is prosecuted.  (Darbee v. Superior Court, supra, 208 Cal.App.2d 680, 688, 25 Cal.Rptr. 520.)  “Relevant to the subject matter” is a broader concept than “relevant to the issues” which determines the scope of the questioning at trial.  (Pacific Tel. & Tel. Co. v. Superior Court, supra, 2 Cal.3d 161, 172, 84 Cal.Rptr. 718, 465 P.2d 854.)

The information sought by deposition questions 1 through 4 is relevant to the genuineness of petitioner's claim for emotional distress (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 167 Cal.Rptr. 831, 616 P.2d 813), and is therefore an appropriate matter for discovery by the real parties in interest.

 D. DOES THE ATTORNEY–CLIENT PRIVILEGE PROTECT FACTUAL INFORMATION TRANSMITTED BY ATTORNEY TO CLIENT?

The remaining deposition questions relate to the content of the communications between the petitioner and her attorneys.   Real parties asked petitioner what petitioner's attorneys told her in their warnings about DBCP (question no. 10);  whether they had given her written or other information about human health effects of DBCP (question nos. 15 and 20);  whether they had given her written information about the potential of DBCP to cause cancer in animals (question no. 17);  and whether they had given her written or other information about the potential of DBCP to cause cancer in humans (question nos. 16 and 19).

In asserting the broad claim of attorney-client privilege as to these questions, petitioner submits that factual information, as well as legal opinions, transmitted from attorney to client are protected against disclosure.   The purpose of the privilege is 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.”  (Estate of Kime (1983) 144 Cal.App.3d 246, 255, 193 Cal.Rptr. 718;  citing Baird v. Koerner (9th Cir.1960) 279 F.2d 623, 629.)

 Under former Code of Civil Procedure section 1881, subdivision (2), the privilege extended only to communications made by the client to an attorney.   The present privilege applies to confidential communications transmitted between a client and a lawyer.  (Evid.Code, § 952.)   Thus, such communications are now protected regardless of origin.  (In re Navarro (1979) 93 Cal.App.3d 325, 328, 155 Cal.Rptr. 522.)

 However, if the information does not constitute a communication or is not intended to be confidential, it is not privileged.  (See Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 125–126, 3 Cal.Rptr. 621.)   Petitioner submits the factual information she received from her attorneys regarding health effects of DBCP is protected by the privilege, citing In re Jordan (1974) 12 Cal.3d 575, 116 Cal.Rptr. 371, 526 P.2d 523 and In re Navarro, supra, 93 Cal.App.3d 325, 155 Cal.Rptr. 522.

Jordan and Navarro stand for the proposition that written material such as draft pleadings, photocopies of an unreported decision, a law review article or newspaper clipping, or copy of a police report sent or handed to a client by his attorney, falls within the attorney-client privilege.   The courts further noted that once an attorney has determined a particular publication is relevant to his client's case, the publication may become an integral part of the attorney's legal advice and strategy and is thus protected.   Further, the attorney-client privilege includes identification of the document transmitted.

Real parties distinguish Jordan and Navarro on the grounds that (1) the information in both cases was legal and pertained directly to the lawyer's tactics in defending his client;  (2) both cases involved criminal, not civil, matters;  and (3) the information sought to be discovered was not the basis for the damages claim.   Real parties point to several California cases for the proposition there is no special status for factual, non-legal information conveyed by an attorney to a client.

In Watt Industries, Inc. v. Superior Court (1981) 115 Cal.App.3d 802, 171 Cal.Rptr. 503, the First District Court of Appeal held an attorney's notes were not protected by the attorney work-product rule where counsel merely acted as business agent for his client.   There the attorney conveyed to plaintiff seller the clients' intention to reside in a condominium they were purchasing from plaintiff.   At deposition the attorney refused to produce notes of that conversation with the plaintiff.   The Court of Appeal directed the superior court to compel production.   The court noted the work-product rule applied to documents related to legal work performed for a client and not to notes memorializing acts performed as a mere agent.

In Montebello Rose Co. v. Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 173 Cal.Rptr. 856, the Fifth District Court of Appeal held written communications between an employer and his attorney-negotiator about pending collective bargaining negotiations were not within the attorney-client privilege.   The court held the privilege does not apply to communications to an attorney who is transacting business that might have been transacted by another agent who is not an attorney.   Since Montebello's labor negotiations could have been conducted by a non-attorney, the communications with the attorney-negotiator were not privileged unless the dominant purpose of the particular communication was to secure or render legal service or advice.

In Rumac, Inc. v. Bottomley (1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104, Fourth District held the absolute privilege of the work-product rule applied to attorney-negotiators as well as attorney-litigators.   Rumac co-owned Alaska Hotel property with a client of attorney Bottomley.   Rumac sued client for a share of profits from a secret side-deal entered into by client.   Rumac sought discovery of documents involved in the secret transaction including papers in the possession of Bottomley.   The court held the absolute privilege of the work-product rule equally applicable to trial and non-trial attorneys.   In so ruling, the court proceeded on the premise the privilege extends to the lawyer only when he/she acts as a lawyer.   The court noted the absolute privilege would not apply where the lawyer merely acts as a business agent conveying or receiving messages.

None of the cited cases is on point.   Real parties submit the instant case is analogous, however, because the attorneys here functioned as transmitters of “fact” information rather than in a legal-counselor capacity.   Real parties contend counsel acted as medical-scientific advisors when they conveyed data about the alleged propensity of DBCP to cause cancer, sterility, or birth defects in humans.

 Real parties' arguments must fail for two reasons.   First, the cases cited by real parties do not differentiate between “factual” and “legal” information, nor do statutes articulating the attorney-client privilege suggest any distinction between these two categories of information.  Evidence Code section 952 defines a confidential communication in terms of information transmitted between a client and his lawyer in the course of their relationship and in confidence.  “Information” is defined as:  “[S]omething received or obtained through informing as:  (a) knowledge communicated by others or obtained from investigation, study, or instruction;  (b) knowledge of a particular event or situation ․;  (c) facts or figures ready for communication or use as distinguished from those incorporated in a formally organized branch of knowledge․”  (Webster's Third New Internat. Dict. (1961) p. 1160.)   Any DBCP warnings conveyed by petitioner's attorneys clearly comes within this definition and is protected by the privilege if given in confidence and related to the purpose of petitioner's consultation.   Moreover, the distinction between “factual” and “legal” information is somewhat artificial and would be difficult to apply on a consistent basis.

Real parties do not dispute the proposition that legal information excahnged between attorney and client may be privileged.   However, real parties neither cite nor suggest guidelines for differentiating “factual” from “legal” information.

Second, petitioner's counsel acted as an attorney when transmitting the DBCP information to his client.   Real parties' contention that petitioner's counsel left the arena of legal advice and assumed the role of physician and scientist in discussing the health effects of DBCP with petitioner views the relationship between petitioner and her counsel too narrowly.   Counsel did not simply give an abstract lecture on the health effects of DBCP to client.   Rather, counsel transmitted such information in the context of investigating, preparing and prosecuting a law suit involving DBCP contamination.   Such information seems to us inextricably intertwined with the legal service or advice given to petitioner by counsel in their professional capacity.   Real parties submit a lawyer has no special talent or skill to convey medical information.   Even assuming, arguendo, this is true, a lawyer still possesses special skills and training to analyze the facts of a dispute in light of such medical information and applicable law to determine the rights and remedies of the respective parties.   The cases cited by real parties are distinguishable because here, a non-attorney could not have performed the tasks required of petitioner's counsel.

Petitioner's attorneys were acting as lawyer-counselors.   Information conveyed about DBCP health effects was intertwined with their legal services and advice to petitioner and therefore within the privilege.

 E. DID PETITIONERS WAIVE THE ATTORNEY–CLIENT PRIVILEGE AS TO COMMUNICATIONS ABOUT DBCP BY TENDERING THE ISSUE OF EMOTIONAL DISTRESS?

Petitioners submit they have no serious objection to questions which merely ask whether confidential communications occurred in the course of which information about DBCP health effects was divulged.   Petitioners make this assertion after initially characterizing such questions as “offensive.”   Petitioners' subsequent assertion effectively disposes of questions 15, 16, 17, 19 and 20, since they merely ask whether petitioner's attorney conveyed certain information about DBCP health effects.   However, petitioners argue real parties should not be permitted to use such questions to breach the confidentiality of the content of the communications.   This brings us to the remaining deposition question (no. 10), which goes to the content of the communications.

Real parties contend they are entitled to full discovery of communications between petitioner and her attorneys which comprise the basis of her claim for damages.   They argue the privilege is inapplicable here because she has tendered the issue of emotional distress and all evidence relevant to this issue is thereby discoverable.

 Emotional distress is a compensable injury when inflicted by a private person if the risk of such harm was reasonably foreseeable to defendant.   (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 711, 190 Cal.Rptr. 494, 660 P.2d 1168.)   In emotional distress cases where there is no physical injury, some guarantee of genuineness in the circumstances of the case is the general standard of proof required to support the claim.   (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916, 930, 167 Cal.Rptr. 831, 616 P.2d 813.)

At the hearing on real parties' motion to compel answers, the following exchange occurred between the court and petitioner's counsel:

“MR. KRAMER:  Your Honor, if I said to my client, if I gave her advice about a legal opinion—for example, DBCP is defective, which is legal advice—would the defendants have the right to get to that?

“THE COURT:  If that contributes to her emotional distress.

“MR. KRAMER:  Well, it's legal advice given to my client which, in my mind, is strictly privileged.   I'm just afraid I can't even talk to my clients anymore about their case, about what's in their water.   And I believe that deteriorates the attorney-client privilege incredibly.

“THE COURT:  If what you tell the client is going to be an element of damage, it's discoverable in my opinion.

“MR. KRAMER:  I understand your position.

“THE COURT:  You can't have damages based on something that is secret.

“MR. KRAMER:  But isn't that for the jury to ascertain, her emotional distress?   The defendants will put on their evidence as to DBCP, plaintiffs will put their experts on as to the risks of DBCP, plaintiff will state what she believes about DBCP;  and won't it be up to the jury to weigh that evidence and make a final conclusion?

“THE COURT:  Maybe, but the defendants have an absolute right, in my opinion, to discover the sources of that information and what the information was.   Just like if you're going to rely on it as a basis for damage, the jury is going to have to be informed.”

Real parties argue the California courts have permitted discovery of otherwise privileged communications where plaintiff has placed in issue a communication going to the heart of the claim in controversy.  (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 130 Cal.Rptr. 257, 550 P.2d 161;  In re Lifschutz, supra, 2 Cal.3d 415, 85 Cal.Rptr. 829, 467 P.2d 557;  Fremont Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554, 187 Cal.Rptr. 137;  Moskowitz v. Superior Court (1982) 137 Cal.App.3d 313, 187 Cal.Rptr. 4, modified at 137 Cal.App.3d 822b, 187 Cal.Rptr. 4;  Wilson v. Superior Court (1976) 63 Cal.App.3d 825, 134 Cal.Rptr. 130,  Newson v. City of Oakland (1974) 37 Cal.App.3d 1050, 112 Cal.Rptr. 890;  and Merritt v. Superior Court (1970) 9 Cal.App.3d 721, 88 Cal.Rptr. 337.)

In each of respondent's cited cases, excepting the Shepherd case, the reviewing court required disclosure of otherwise privileged information or communications on the ground that plaintiff had placed such information in issue by his pleadings and the relief sought.   In Shepherd, the Supreme Court noted the privilege against self-incrimination could be asserted by defendant police officers in a wrongful death action.   However, in so ruling, the court stated a party seeking civil relief may not refuse on the grounds of privilege to testify on matters relevant to his recovery.   In In re Lifschutz, Justice Tobriner stated a patient may have to delimit his claimed mental or emotional distress or explain in general terms the object of the psychotherapy in order to illustrate that confidential (psychiatrist-patient) communications are not directly relevant to the condition he has placed in issue.   In Fremont Indemnity Co., plaintiff sought a protective order preventing defendant fire insurance company from taking plaintiff's deposition in a civil action while arson charges were pending against him.   The Court of Appeal held plaintiff could not postpone discovery under the cloak of his Fifth Amendment privilege.   Although the court noted plaintiff could still claim his privilege, it held plaintiff would have to dismiss the lawsuit if he persisted in doing so.

In Wilson v. Superior Court, supra, 63 Cal.App.3d 825, 134 Cal.Rptr. 130, the Third District Court of Appeal held the taxpayer waived the nonstatutory privilege of confidentiality as to income tax returns by filing a lawsuit placing the contents of those returns directly in issue.   The court held plaintiff could either maintain her lawsuit or the confidentiality of her returns, but not both.   In Newson, plaintiff contended he was prejudiced by the forced disclosure of his failure to file federal and state income tax returns in an action for personal injuries in which he sought damages for loss of income.   The trial court ruled Newson had a choice between answering a question regarding filing of tax returns or withdrawing his claim for earnings and “couldn't have his cake and eat it too.”   The First District Court of Appeal affirmed.   In Merritt, the Court of Appeal held that since plaintiff intended to prove his case by reference to the mental state of his counsel, there was a waiver of the attorney-client privilege and defense counsel was entitled to inquire into communications related to that state.

Petitioners contend the matter sought to be protected in these cited cases was either central to the claim being prosecuted or the communication was specifically made discoverable by statute.   Petitioners argue (1) the instant case does not involve withholding of crucial evidence on the central issue tendered by the party claiming privilege, and (2) the gravamen of the suit is not so inconsistent with continued assertion of the privilege as to demonstrate a waiver.   Petitioners contend the filing and prosecuting of their suit has not put in issue their attorneys' state of mind or any communications between petitioners and their attorneys.   Petitioners submit the real issues are their knowledge and state of mind and evidence of these subjects may be ascertained directly from them without any need to examine DBCP information transmitted by their attorneys.

Petitioners also rely on a number of cases in arguing that communications from their attorneys are not in issue here.  (Schlumberger Limited v. Superior Court (1981) 115 Cal.App.3d 386, 171 Cal.Rptr. 413;  Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 165 Cal.Rptr. 748;  Miller v. Superior Court (1980) 111 Cal.App.3d 390, 168 Cal.Rptr. 589;  Lohman v. Superior Court, supra, 81 Cal.App.3d 90, 146 Cal.Rptr. 171.)   Each of these cited cases involves an action by plaintiff against a former attorney or a law firm in which disclosure of attorney-client communications is sought.   In each instance the appellate court denied the sought after information finding either no waiver occurred or that, unlike Merritt, the mental state of counsel was not in issue.1

Although the cases cited by the respective parties provide guidance to the court in the instant case, none deal squarely with the issue here.   Real parties essentially argue petitioners have tendered the source and substance of all DBCP warnings by tendering the issue of emotional distress.   In other words, an emotional distress claim gives rise to an issue of genuineness which can only be resolved in light of the source and substance of warnings about DBCP, including those of claimants' attorneys.   Petitioners agree that reasonableness/genuineness of their fears is a proper concern.   However, they submit the issue can be litigated without exploring what their attorneys told them about DBCP.   According to petitioners, the principle measure of reasonableness is whether their fears square with the scientifically known or suspected effects of DBCP.   However, petitioners offer no legal authority in support of this proposition.

Subsequent California cases have not analyzed or amplified the genuineness requirement of the Molien rule and therefore offer no guidance in interpretation.   The Molien rule derived from the Hawaii Supreme Court case of Rodrigues v. State (1970) 52 Haw. 156, 472 P.2d 509.   There the Supreme Court held where proof of mental distress is not medically significant, the general standard of proof to support a mental distress claim is some guarantee of genuineness.   The court adopted a reasonable man standard and held serious emotional distress occurs where a reasonable man would be unable to adequately cope with the mental stress engendered by the circumstances of the case.

In the instant case, the superior court did not expressly invoke a reasonable man standard in discussing the genuineness of petitioners' claim.   Rather, the court looked to petitioners' claim of emotional distress, Mrs. Mitchell's statement that all of the warnings contributed to that distress, and found a tender of the warnings in the action.2  The court further held this information went to the measure of emotional distress damages and that real parties were entitled to such information.

 In light of the Molien rule and Rodrigues standard, the superior court's ruling compelling petitioner's answer to question 10 is correct.   The attorney warnings are critical to determining the genuineness of petitioners' claim for emotional distress.   Granted, the central issue of the case is whether DBCP is causing the harm alleged.   However, the emotional distress alleged did not simply arise from contamination of petitioners' water supply by DBCP.   Rather, the alleged emotional distress arose after petitioners received information about DBCP health effects from a variety of sources.   Respondents must defend against petitioners' claim of specific past mental distress damages which requires examination of what caused it, including the possibility of false or misunderstood statements by her attorney.   Only then can the veracity of the information and the legitimacy of petitioners' emotional distress claim be ascertained.   By seeking damages for emotional distress based on these warnings, petitioners have tendered this information in issue, thereby waiving the protection of the attorney-client privilege.   This information goes to the genuineness of petitioners' claim, the causation of these alleged emotional injuries, and the reasonableness of the alleged damages.

F. PUBLIC POLICY

Finally, each side contends the public policy underlying the relevant statutes supports their respective positions on the discoverability of DBCP information communicated by petitioners' attorneys.

Petitioners submit conferences between attorneys and their clients must be characterized by free, open and frank disclosures on both sides.   If an attorney cannot freely express his opinions and impart his knowledge on all issues upon which he is consulted, the value of his services to the client is greatly diminished.   In addition, where the privilege involved is a creature of statute, such as the attorney-client privilege, petitioners submit the equitable notion of implied waiver underlying Newson has no application absent statutory authorization.  (Miller v. Superior Court, supra, 111 Cal.App.3d 390, 394–395, 168 Cal.Rptr. 589.)   Assuming arguendo the courts may apply general notions of fairness and equity, petitioners submit nothing warrants abrogation of the privilege here.   They argue the most that can be claimed about the attorney warnings is they shed incidental light on the reasonableness of petitioners' fears.   They contend that can be shown more directly and forcefully by comparing petitioners' stated beliefs about the effects of DBCP with the scientifically proven effects.   Petitioners submit real parties have persuaded respondent superior court to enunciate a sweeping and unrestricted exception to the attorney-client privilege which will result in incalculable harm because as a result a substantial portion of their trial strategy will be revealed.   They assert this exception will apply in every lawsuit in which emotional distress is among plaintiff's items of damage.   The exception will enable a defendant to probe the “recesses of the attorney-client relationship” for evidence that plaintiff's attorney has exacerbated plaintiff's harm by giving advice or asking questions.

Real parties submit petitioners should not be allowed to block real parties' access to evidence strongly probative on the issues raised by petitioners.   Real parties argue it would be patently unfair to permit petitioners to litigate an issue and deny them the right to defend against it.   That right to defend compels a finding the privilege did not exist or, in the alternative, an implied waiver took place pursuant to Newson.   Real parties contend that forcing them to wait until disclosure at trial would unfairly impede the judicial process without promoting the purposes of the privilege.   In support of this position, they point to the long recognized legislative purpose underlying the discovery statutes, i.e., the encouragement of expeditious and informed litigation and removal of the “surprise” element.  (Greyhound Corporation v. Superior Court, supra, 56 Cal.2d 355, 375–376, 15 Cal.Rptr. 90, 364 P.2d 266.)   They submit the narrowly circumscribed deposition questions authorized by respondent court must be approved in the interest of unfettered discovery of all information relevant to petitioners' emotional distress claims.   Otherwise, there would be an unwarranted restriction of real parties' entitlement to a full and complete defense of the instant action.

Shell real parties cite a number of federal authorities for the proposition that waiver of the attorney-client privilege may occur on grounds of fundamental fairness where plaintiff has tendered a communication going to the heart of the claim.3

In the instant case, the superior court held a party cannot recover damages based on something that is secret, stating:

“I don't even think there is a privilege with reference to this information.   But if there is, it certainly comes within the waiver provision, just like in the Newson case.   Certainly you have an absolute right against self-incrimination, and we will let you exercise that right.   But by exercising it, if you deprive the other individual of information relevant to your damage claim, we're going to tell you you have to abandon that claim, either waive the privilege or abandon the claim.   Same is true here.   I don't see a particle of difference.”

In light of Newson and the other authorities cited by respondent, we conclude the balance of policy factors weighs in favor of disclosure of the attorney communications.   If the communications were to remain confidential, petitioners would be pursuing damages from real parties while denying them any opportunity to discover the factual basis of the emotional distress claim.   Even assuming the factual basis is revealed at trial, this would inject a surprise element into the action and would deny real parties a meaningful opportunity to prepare and present an informed defense to the claim.   Given the traditional strict construction of the privilege and the liberal construction of the discovery statutes in California, public policy requires that real parties be informed of the basis for petitioner's emotional distress claim.

A review of the record indicates respondent court carefully weighed and considered the competing interests of the respective parties here.   The court's order compelling discovery is narrowly framed and a proper exercise of discretion.   The order does not require automatic waiver of the privilege when a plaintiff asserts a claim for emotional distress.   In the unique circumstances of this case, petitioner Bette Mitchell has identified her attorneys as one of the sources of warnings which underlie her claim for emotional distress against real parties.   Petitioners cannot recover damages for emotional distress while concealing the basis of that distress within a cloak of evidentiary secrecy.   Fundamental fairness requires petitioners either waive the privilege and reveal to real parties the information relevant to their claim of damages or maintain the privilege and abandon the claim.

The petition for writ of mandate or prohibition is denied and the stay order of this court is vacated.

FOOTNOTES

1.   Real parties distinguish Miller because there, defendants attempted a broad inquiry into all communications between client and her prior attorneys and nothing indicated the prior attorneys informed client about her actual damages.   Real parties distinguish Lohman because there, the knowledge of the plaintiff, not her attorney, was in issue and that could be obtained from plaintiff herself.   Here, real parties seek information from Mrs. Mitchell herself and she cannot provide it unless she reveals the substance of attorney communications.   Real parties distinguish the other cases cited by petitioners based on their facts.

2.   Petitioners correctly note the superior court at various points relied on different grounds for its ruling.   At one point, the court indicated the matter transmitted between attorney and client was factual information outside the privilege.   At other points, the court indicated the petitioners impliedly waived the privilege as to that matter by claiming emotional distress and thereby tendering information which caused that distress.

3.   Weil v. Investment Indicators, Research & Management (9th Cir.1981) 647 F.2d 18, 24 (purchaser of shares appealed from dismissal of lawsuit against mutual fund for violation of federal securities laws.   Court of Appeal held fund's disclosure of privileged attorney communication constituted waiver of the privilege as to all other such communications on the same subject.   Inadvertence of disclosure did not as a matter of law prevent waiver);  Handgards, Inc. v. Johnson & Johnson (N.D.Cal.1976) 413 F.Supp. 926, 929 (manufacturer of disposable plastic gloves filed antitrust action against competitors, claiming their bad faith filing of patent infringement suits.   Competitors intended to show good faith by calling the attorneys who prosecuted the infringement suits as trial witnesses.   However, competitors resisted discovery of the attorneys.   District court held fairness is an important consideration in assessing the issue of waiver.   By putting their attorneys on the witness stand, competitors would waive the attorney-client privilege as to communications on the issue of good faith prosecution);  Hearn v. Rhay (E.D.Wash.1975) 68 F.R.D. 574 (inmate filed civil rights suit against prison officials based on his confinement in mental health unit of state penitentiary.   Defendant prison officials asserted good faith and qualified immunity as affirmative defenses.   Inmate sought discovery of all legal advice defendants' received on legality of his confinement and defendants asserted attorney-client privilege.   District court found defendants' implicit waiver of the privilege because (1) they invoked a privilege in furtherance of their affirmative defense, (2) by this affirmative act they placed protected information at issue because legal advice was germane to the immunity defense, (3) assertion of the privilege denied plaintiff access to information vital to his case, and (4) plaintiff made substantial showing of merit in his case);  Garfinkle v. Arcata National Corporation (S.D. New York 1974) 64 F.R.D. 688 (plaintiff filed securities suit against defendant corporation alleging it failed to register its shares with the securities and exchange commission per an agreement.   Answering the complaint, defendant referred to correspondence transmitted to plaintiff including an opinion letter of its counsel.   That letter advised plaintiff his shares could be sold without registration.   District court compelled production of attorney memoranda relating to the opinion letter.   Defendant injected the opinion letter into the case and plaintiff was entitled to probe the circumstances surrounding issuance of the letter);  International Tel. & Tel. Corp. v. United Tel. Co. of Fla. (M.D. Fla.1973) 60 F.R.D. 177 (plaintiff telephone company sued for antitrust violations and tortious interference with contractual relationships where defendant filed a complaint before Florida public service commission to prevent plaintiff from selling telephone system in defendant's geographic area.   Plaintiff sought discovery of documents surrounding the action before the commission.   Defendant denied plaintiff's contentions the commission action was sham and raised two counterclaims relating to that proceeding.   District court held it likely defendant would introduce evidence of the confidential communications between defendant and its attorneys regarding the commission proceedings.   Fundamental fairness and justice required that if defendant intended to waive the privilege at trial by introducing evidence, then defendant would be required to allow discovery with regard to such matters).

MARTIN, Associate Justice.

ANDREEN, Acting P.J., and WOOLPERT, J., concur.