WILLIAMSON v. SHELL OIL COMPANY (1977)

 Petitioner is the plaintiff in an action for personal injuries.   His claim is that, while acting as a temporary employee of Shell Oil Company (Shell) ¹ , he was injured while attempting to install a tire manufactured by Firestone tire and Rubber Company (Firestone) using a tire changing machine manufactured by Big Four Automotive Equipment Corporation (Big Four).   The theory of his action is that the injuries were the result of defects both in the tire itself and in the changing machine.   Plaintiff and Big Four employed experts to assist their counsel in preparing for trial.   Counsel for Big Four delivered to counsel for Firestone a copy of the report made by Mr. Kurt to counsel for Big Four.   Counsel for petitioner desire to secure a copy of the Kurt report and to take his deposition.   The trial court denied a motion to require delivery of a copy of the report;  it permitted petitioner to take Mr. Kurt's deposition but limited its order in that regard quite severely.²

Originally, Big Four had agreed to make Mr. Kurt available for deposition;  later that agreement was revoked.   Petitioner alleges, and respondents do not deny, that Firestone, after its counsel received a copy of the Kurt report, had agreed with Big Four that, if Big Four would agree not to call Mr. Kurt, Firestone would indemnify Big Four against liability to petitioner.

I

 Although petitioner attacks the indemnity agreement as improper, we see no objection to it as such.   A party in the position of Firestone, with some common grounds of defense against a plaintiff, but with a potential conflict with a codefendant, may quite properly settle the intradefense dispute.   In negotiating for such a settlement, the two defendants may, without impropriety, exchange information designed to convince one defendant that, if the plaintiff should prevail, all or part of the liability would necessarily fall on it.

II

The issue before us, thus, is not whether Firestone and Big Four could settle their mutual differences, but whether the negotiations leading up to that settlement amounted to a waiver of Big Four's undoubted work product privilege in Mr. Kurt's report.   We conclude that it did.

 Had counsel for Big Four done no more than to tell counsel for Firestone that it had an expert, Mr. Kurt, who would testify that, if either defendant were at fault, that fault lay at Firestone's door, no problem could have arisen.   But counsel for Big Four went further;  they also gave to counsel for Firestone the Kurt report which, the parties seem to agree, included not only his ultimate conclusion but the details of his examination of the tire that led him to that conclusion.

 We are cited to numerous cases to the effect that the exchange of information between codefendants having a common cause against a plaintiff does not amount to a waiver of the work product privileges.   We do not disagree with those holdings.   However, as to the issue toward which the Kurt report was directed, Firestone and Big Four had adverse, and not common, interests.   As we have pointed out above, in addition to their common interest in defeating any claim of liability to petitioner,³ Firestone and Big Four had an interest in proving that, if there was any liability, it was due to the fault of the other.   When Big Four's counsel, in their attempt to protect their client, went so far as to disclose, to an adverse party, the details of its investigation, it put itself beyond the rule of the cases above referred to and made those details available to all of the adverse parties.

Let a peremptory writ issue, directing the trial court to vacate its order insofar as it denied petitioner's motion to require delivery to his counsel of a copy of the Kurt report, and to make and enter a new and different order granting said motion in that respect.   The alternative writ is discharged.

I concur in the result reached by Justice Kingsley.   However, in light of the views expressed by Presiding Justice Files in his dissent, and because of certain statements contained in the opinion of Justice Kingsley, I deem it appropriate to set forth my own views as to the nature and scope of the attorney's work-product privilege, including the circumstances under which a waiver takes place.

The attorney's work-product privilege is a creation of both statutory and decisional law.  Code of Civil Procedure section 2016, subdivision (b), contains a paragraph stating:  “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.”  (Emphasis added.)

Code of Civil Procedure section 2016, subdivision (g), sets forth the policy involved in the creation of the attorney's work-product privilege.   Subdivision (g) provides:  “It is the policy of this state (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry or efforts.”

It is significant that these statutory provisions relating to the attorney's work-product privilege are set forth as an integral part of that portion of the Code of Civil Procedure that deals with the subject of “discovery.”   It is to be noted that the language of subdivision (b) speaks in terms of an attorney's work product not being discoverable.   This wording is employed because the problem generally arises when disclosure is sought in a pretrial discovery procedure, such as involved in interrogatories, depositions, motions for production, inspection and copying of writings.

The statutory policy as set forth in subdivision (g) of section 2016 identifies two elements that undergird that attorney's work-product privilege.   Thus, nondisclosure of an attorney's work product is deemed desirable (1) in order to encourage the attorney for a party to make a thorough preparation for trial, including an analysis of unfavorable aspects of his case as well as the favorable aspects, and (2) to prevent one attorney from taking undue advantage of another's industry and efforts.

It is also to be noted that the attorney's work-product privilege is dual in nature:  partly absolute and partly conditional.   The absolute portion of the privilege is set forth in subdivision (b) of section 2016 of the Code of Civil Procedure and provides that an attorney's work product that consists of a writing that reflects an attorney's impressions, conclusions, opinions or legal research or theories is immune from discovery under any circumstances.   All other matters that make up the attorney's work product are also privileged from disclosure unless the trial judge determines that denial of disclosure will (1) unfairly prejudice the party seeking disclosure from preparing his claim or defense or (2) result in an injustice.

The statutory provisions found in subdivision (b) of section 2016 do not contain an all-inclusive definition of what constitutes an attorney's work product.   The statute defines only that portion of the privilege which is deemed absolute and free from disclosure under all circumstances, to wit, a writing that reflects an attorney's (1) impressions, (2) conclusions, (3) opinions or (4) legal research or theories.   The conditional portion of the attorney's work-product privilege has been left to the decisional law for definition and determination.

The portion of the attorney's work-product privilege that we deal with in the instant case is the conditional portion of the privilege.   The conditional portion of the privilege covers material of a derivative or interpretative nature that is obtained or produced by the attorney in preparation for trial.   Examples of such material include (1) diagrams and charts;  (2) audit reports of books, papers and records;  and (3) the findings, opinions, and reports of experts who are employed by the attorney to analyze evidentiary material in preparation for trial.  (See Jefferson, California Evidence Benchbook (1972) § 41.2, pp. 709–712.)   It is this third category of material that is involved in the case at bench.

Although there is no statutory provision that sets forth the means by which an attorney's work-product privilege terminates once it comes into existence, the decisional law has created two categories of termination.   One category establishes termination of the privilege by virtue of the consultant-expert becoming a prospective witness.  (See Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 93 Cal.Rptr. 719;  Mize v. Atchison, T. & S.F. Ty. Co. (1975) 46 Cal.App.3d 436, 120 Cal.Rptr. 787.)   This situation is not involved in the case at bench since the decision was made that the consulting expert would remain a consultant and not become a witness in the case.   The second method of termination of the attorney's work-product privilege, created by decisional law, results from the concept of waiver of the privilege.   Even though the pertinent sections of the Code of Civil Procedure do not contain any provision for waiver of the attorney's work-product privilege, the courts have held that an attorney may waive this privilege—a privilege which has been created for his benefit.   Since the privilege belongs to the attorney and not to the client, it is only the attorney—not the client—who can waive the privilege.  (American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 113 Cal.Rptr. 561.)

The doctrine of waiver becomes applicable when an attorney either (1) voluntarily discloses to another person a matter that is subject to the attorney's work-product privilege, or (2) consents to such disclosure by another person such as the consultant-expert who has developed and prepared for the attorney findings, opinions or a report.  (Petterson v. Superior Court (1974) 39 Cal.App.3d 267, 114 Cal.Rptr. 20;  Kerns Constr. Co. v. Superior Court (1968) 266 Cal.Ap.2d 405, 72 Cal.Rptr. 74.)   Consent by an attorney to disclosure by another may be manifested by any statement or other conduct of the attorney indicating his consent to the disclosure made by another person such as the consultant-expert, or by a failure of the attorney to claim the privilege in any proceeding in which he has the opportunity to claim the privilege.

The doctrine of waiver by an attorney of the attorney's work-product privilege through the attorney's disclosure, or his consent to disclosure made by another person of material subject to the privilege, developed by California decisional law, is similar to the doctrine of waiver of the confidential communication privileges developed by statute.   Thus, Evidence Code section 912 provides, with respect to the various confidential communication privileges such as the lawyer-client privilege, the material communications privilege, the physician-patient privilege and the psychotherapist-patient privilege, that the privilege makes a voluntary disclosure of a significant part of the communication of consents to such disclosure by another person.  (See Jefferson, California Evidence Benchbook 1972) § 35.1, pp. 615–620.)

In considering whether there has been a waiver by a privilege holder through disclosure of a significant part of a confidential communication that is subject to one of the confidential communication privileges, the question of the privilege holder's intent to waive his privilege is not a relevant element.  Evidence Code section 912 does not require any intent to waive the privilege by the privilege holder.   The waiver results from the voluntary disclosure of the otherwise privileged communication, irrespective of the privilege holder's intent.

The position of the dissent in the instant case is that a waiver of the attorney's work-product privilege should require application of the principle that a waiver results only where there is an intentional relinquishment of a known right.   But since no intent to waive the privilege, in addition to a privilege holder's disclosure of a privileged communication, is required to effect a waiver of a confidential communication privilege, no valid reason exists for imposing any such intent requirement to accomplish a waiver of the attorney's work-product privilege under similar circumstances—an attorney's voluntary disclosure to another person of material that is subject to the attorney's work-product privilege.   Whether the attorney has an intent to waive the privilege when he makes the disclosure is irrelevant.   If he voluntarily makes a disclosure to another attorney of material otherwise subject to the privilege, the privilege is thereby waived as a result of such disclosure even though the attorney's intent is that only the person to whom disclosure is made shall be privy to the disclosed material.

It is of considerable significance that the attorney's work-product privilege is superimposed on the right of pretrial discovery in the nature of a statutory limitation on the right of discovery.  “Certainly, it can be said that the Legislature intended to take the ‘game’ element out of trial preparation while yet retaining the adversary nature of the trial itself.   One of the principal purposes of discovery was to do away ‘with the sporting theory of litigation—namely, surprise at the trial.’  ․ discovery tends to ‘make a trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.’ ”  (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376, 15 Cal.Rptr. 90, 99, 364 P.2d 266, 275.)   Consequently, the attorney's work-product privilege should be given no broader interpretation than is required to carry out its policy of protecting the right of an attorney to prepare his case thoroughly and to investigate his client's position to obtain both the favorable as well as the unfavorable aspects, and to preclude an adversary attorney from taking undue advantage of the former's efforts.   There can be no such policy involved, however, in protecting the attorney's work product from disclosure of his work product to another person—an adversary attorney or some other person.

The Kerns represents persuasive authority for holding that, in the instant case, the attorney's work-product privilege has been waived by the voluntary disclosure by defendant Big Four's attorney to defendant Firestone's attorney of the findings, opinions and report of Kurt—the consultant-expert employed by defendant Big Four.   In Kerns a plaintiff, injured as a result of an explosion, sued the Southern Counties Gas Company, which filed a cross-complaint against Kerns Construction Company, alleging that Kerns was the responsible party.   Kerns took the deposition of an employee of the gas company that qualified as a report of a consultant-expert.   In the process of being questioned, the deponent indicated that he needed his written report in order to be able to answer the questions posed of him.   The gas company's attorney provided the witness with his report to refresh his recollection.   At the conclusion of the deposition the attorney for Kerns requested that the report used by the deponent for refreshing his recollection be attached to the deposition.   The attorney for the gas company objected on the ground of the attorney's work-product privilege.  Kerns held that the attorney for the gas company had waived the privilege by releasing the information contained in the report to the deponent, as a basis for the latter's testimony.

Kerns made the following statement which is pertinent to the issue presented in the case at bench:  “If, as claimed, the reports were privileged rested with the attorney and was waived by the attorney when he produced the reports to the witnesses upon which to premise his testimony.   The attorney cannot reveal his work product, allow a witness to testify therefrom and then claim work product privilege to prevent the opposing party from viewing the document from which he testified.”  (Kerns, supra, 266 Cal.App.2d 405, at p. 411, 72 Cal.Rptr. 74, at p. 77.)

The principle of waiver of the attorney's work-product privilege resulting from a voluntary disclosure by the attorney is also exemplified by the Peterson case.   In Peterson, which started as a will contest proceeding, an attorney representing the executor of a formal will petitioned for its probate.   The attorney for one of the heirs named in a subsequent holographic will employed a handwriting expert to examine the holographic will and give advice regarding the genuineness of the decedent's signature.   Thereafter, the attorney representing this heir advised the attorney for the executor that the expert's opinion was to the effect that the signature on the holographic will was a forgery.   Subsequently, an attorney for a second heir named in the holographic will petitioned for probate of the holographic will.   The attorney for the executor advised the attorney for the second heir of the information the former had received from the attorney for the first heir regarding the handwriting expert's opinion.   The attorney for the executor then served notice that he was taking the deposition of this handwriting expert.   The attorney for the second heir sought a court order to preclude the executor's attorney from taking the handwriting expert's deposition on the ground that he, the attorney for the second heir, had hired the same expert to study the question of the genuineness of the decedent's signature on the holographic will for the purpose of consultation and did not propose to call the handwriting expert as a witness.   The attorney for the second heir urged the position that his employment of the handwriting expert made all opinions of the expert immune from discovery on the part of the executor's attorney by reason of the attorney's work-product privilege.

Petterson rejected the assertion of the attorney's work-product privilege by the attorney for the second heir on the ground that the first heir's attorney, who possessed the attorney's work-product privilege with respect to the handwriting expert's opinions, had waived the privilege by his voluntary disclosure to the executor's attorney of the expert's opinion.   The Petterson court took the view that, although the observations and conclusions of the handwriting expert that were reached during the period he was engaged by the first heir's attorney came initially within that attorney's work-product privilege, the privilege was waived with respect to those observations and conclusions by virtue of the disclosure by the first heir's attorney to the executor's attorney of the expert's observations and conclusions.

In making the determination of waiver of the attorney's work-product privilege, through disclosure, the Petterson court relied upon Evidence Code section 912, subsection (a), that deals with the subject of waiver of the confidential communication privileges through disclosure, and also upon the Kerns case.   The rationale of the Peterson case is that, although the attorney's work-product privilege is a produce of legislation embodied in the Code of Civil Procedure and of case-made law, and is not a legislative creation found in the Evidence Code, the rule of waiver of a privilege resulting from a voluntary disclosure is certainly a reasonable rule of law in light of the statutory provisions for waiver-by-disclosure created by Evidence Code section 912 for the various confidential communication privileges.   The waiver-by-disclosure principle for the attorney's work-product privilege set forth in Kerns was cited with approval in Mize v. Atchison, T. & S.F. Ry. Co., supra, 46 Cal.App.3d 436, 120 Cal.Rptr. 787.

The dissent seeks to limit the scope of the attorney's work-product privilege to the letter of the statutory creation of the privilege found in Code of civil Procedure section 2016, subdivision (b), asserting that an attorney's work product becomes discoverable only if the trial court finds that denial of discovery will either unfairly prejudice the party seeking discovery or will result in an injustice.   Since neither alternative finding was made by the trial judge in the instant case with reference to the inability of plaintiff to secure a copy of the report of Kurt, the consultant-expert employed by Big Four's attorney, the dissent concludes that the majority's result is erroneous in compelling discovery.   But the attorney's work-product privilege is not limited to the statutory provisions of Code of Civil Procedure section 2016, subdivision (b).   As indicated at the beginning of this opinion, California decisional law has created the doctrines of (1) waiver-by-disclosure and (2) termination of the privilege by a consultant-exert becoming a prospective witness.   These two doctrines require termination of the attorney's work-product privilege and compel disclosure of material such as the Kurt consultant-expert report, with equal vitality and standing as the “unfair prejudice” and “injustice” finding set forth in subdivision (b) of section 2016.  (See Jefferson, California Evidence Benchbook (1972) § 41.1, pp. 701–709.)

The dissenting opinion also espouses the view that an attorney for a party, such as the attorney for defendant Big Four, should be free to disclose his work product to the attorney for another party, such as the attorney for defendant Firestone, without such voluntary disclosure constituting a waiver of the attorney's work-product privilege to then permit the attorney for a third party—such as the attorney for plaintiff—to obtain discovery of the disclosed material.   It is the view of the dissent that such a disclosure—without constituting a waiver—is consistent with the policy of the attorney's work-product privilege and is conducive to economical litigation.

I see nothing either desirable, deserving, or meritorious in a rule of law that would permit this kind of disclosure between attorneys for parties adverse in interest and that works to the obvious detriment of another party to the litigation.   A principle that permits sharing of work product between attorneys for parties who have adverse interests does not comport with the salutary policies and purposes underlying pretrial discovery and the limited restriction on discovery permitted by the attorney's work-product privilege and is simply contrary to any recognizable principle of logic or reason.

The principle enunciated by the dissent is one that would likely, in many instances, lead to the deleterious consequence of encouraging attorneys for separate defendants to enter into calculated, collusive and conspiratorial understandings designed to impede, impair and defeat the legitimate efforts of a plaintiff to obtain discovery of relevant and needed material.

The dissent considers that it is legitimate and desirable trial tactics for the attorney for Big Four to decide that the best interests of his client are promoted by defendants Big Four and Firestone joining hands and seeking to preclude plaintiff from recovering against either defendant, even though, to accomplish this result, Big Four's attorney must release his work-product to Firestone's attorney, thereby obtaining an indemnity agreement from Firestone predicated on Big Four's agreement to maintain the status of Kurt as a consultant-expert rather than calling the expert as a witness for Big Four.   This kind of common interest between defendants is illusory and insufficient to justify creating a rule of law that disclosure of the work product of Big Four's attorney to the attorney for Firestone does not constitute a waiver of the attorney's work-product privilege under the established principle of law of waiver-by-disclosure.

In the case at bench, the nature of the interests of the two defendants is quite clear.   Defendant Big Four's interest is adverse to plaintiff and is equally adverse to the codefendant Firestone.   Defendant Big Four has one interest and one interest only—to preclude any recovery against it whether by way of establishing that plaintiff's conduct was the sole proximate cause of his injuries or that any recovery by plaintiff should be solely against Firestone.   Similarly, defendant Firestone has one interest and one interest only—to preclude any recovery by plaintiff against Firestone, whether it is accomplished by precluding any recovery at all by plaintiff from either defendant or by plaintiff's recovery exclusively against defendant Big Four.

It an attorney for one defendant desires to gain an advantage over his adverse codefendant by disclosing his work product to the codefendant's attorney, he is free to do so, but not at the expense of plaintiff.   If the knowledge of the sure loss of the attorney's work-product privilege causes an attorney not to reveal his work product to the attorney for the codefendant, the action will then be tried as it should be—an adversary proceeding to determine the facts on the merits without giving any one party an advantage over any other party.   In determining whether his client's best interest will, or will not, be served by a disclosure of his work product to the attorney for a codefendant, the attorney weighing such decision must simply take into account the fact that disclosure will effect a waiver of the privilege, with the consequence that plaintiff will be entitled to discovery of the material, thereby giving all parties equal access to the material.

The dissent cites several federal cases for the proposition that a sharing of work product does not automatically destroy the attorney's work-product privilege.   None of these cases involved the type of factual situation presented in the case at bench.   They do not hold that an attorney for a defendant [adverse in interest to another defendant may disclose a consultant-expert's opinion to the adverse defendant's attorney without such disclosure being considered a waiver by the voluntary disclosure of such material.

Finally, although the issue is not before us, I must indicate my disagreement with the statement contained in Justice KINGSLEY's opinion that, had the attorney for Big Four done no more than advise Firestone's attorney that Big Four had an expert who would testify that if either defendant were at fault, that fault lay at Firestone's door, no problem would have arisen.   The inference from this statement is that such a disclosure, without delivery of Kurt's report, would not have constituted a waiver of the attorney's work-produce privilege.   I consider that disclosure of that information to Firestone's attorney was sufficient, by itself, to constitute a waiver of the privilege.   This result would seem dictated by the views expressed in Petterson in which the details of a handwriting expert's opinions and conclusions were not disclosed to the executor's attorney, but the disclosure of the final opinion that a signature on a holographic will was not genuine was held sufficient to constitute a waiver of the attorney's work-product privilege and permit the executor's attorney to take the expert's deposition and discover the details of his findings, opinion, and conclusions, and his reasons for such findings, opinion and conclusions.  (See Petterson, supra, 39 Cal.App.3d 267, 114 Cal.Rptr. 20.)

My colleagues appear to have invented an unprecedented limitation upon the attorney work product privilege, a limitation which conflicts with statutory policy and may unnecessarily inhibit communication between attorneys.

Code of Civil Procedure, section 2016, subdivision (g), declares:  “It is the policy of this state (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry or efforts.”

It is inconsistent with this policy and conducive to economical litigation for an attorney to share his work product with another party when he believes the disclosure will not prejudice his own client.   In some cases, as in the one now here, an attorney will conclude it is not in his client's interest to share work product with all of the parties.   If we impose the rule that sharing must be all-or-none, there will be less sharing, and the salutary policy of the law will be to that extent thwarted.

I agree that the work product privilege may be waived, but the “waiver” invoked by my colleagues in this case is a fiction.   Waiver ordinarily results from an intentional relinquishment, or by an exposure which is inconsistent with the maintenance of the privilege.   The two cases cited by Justice Jefferson are illustrations of that.

In Kerns Constr. Co. v. Superior Court (1968) 266 Cal.App.2d 405, 72 Cal.Rptr. 74 the attorney-holder of the privilege showed the privileged report to a witness to refresh the witness' recollection.  Evidence Code section 771 provides that if a witness uses a writing to refresh his recollection, the writing must be produced for the inspection of adverse parties.   The attorney's act necessarily amounted to a waiver of the privilege as to all parties.

In Petterson v. Superior Court (1974) 39 Cal.App.3d 267, 114 Cal.Rptr. 20 the attorney for the proponent of a purported holographic will decided not to offer the will because of an adverse report from his handwriting expert.   He so informed the executor (who was appointed under another will), “ stating he had ‘washed [his] hands' of the holographic will.”  (39 Cal.App.3d at p. 270, 114 Cal.Rptr. at p. 22.)   This was an example of waiver by voluntary relinquishment.

Those cases do not support the decision in this case.

Other courts which have considered the subject have taken the view that a sharing of work product does not automatically destroy the privilege.  (See Burlington Industries v. Exxon Corporation (E.D.N.Y.1974) 65 F.R.D. 26, 43;  Stix Products, Inc. v. United Merchants & Mfrs., Inc. (S.D.N.Y.1969) 47 F.R.D. 334, 338;  American Standard, Inc. v. Bendix Corp. (W.D.Mo.1976) 71 F.R.D. 443, 446;  cf. Continental Oil Co. v. United States (9 Cir.1964) 330 F.2d 347 (attorney-client privilege);  see 63 Yale L.J. 1030, 1032 (1954);  Developments in the Law—Discovery, 74 Harv.L.Rev. 940, 1044 (1961).)

Code of Civil Procedure, section 2016, subdivision (b), contains this language:  “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.”

In the present case there has been no finding that the refusal to show plaintiff the Kurt memorandum will unfairly prejudice plaintiff or will result in injustice.   Plaintiff's experts have examined the tire which Kurt examined.   Kurt will not be called as a witness.   We are not even discussing whether Kurt may be deposed by plaintiff.   My colleagues concede that the memorandum need not have been disclosed to anyone.   The reason they give for compelling discovery is the fact that Big Four disclosed the memorandum to Firestone, who apparently will make no use of it.

In any case in which it appeared that the sharing of work product between two attorneys would unfairly prejudice a party or result in injustice, the work product would be discoverable under section 2016, subdivision (b).   This statutory standard seems to be adequate and workable.

My disagreement is with overkill by judicial absolutism, which will inhibit legitimate communication between plaintiffs as well as between defendants.

Members of the trial bar may be dismayed to read that two justices firmly declare that Big Four had an interest in proving at the trial that Firestone was liable to the plaintiff.   That is a view from the appellate bench.   The attorney employed to represent Big Four has a different viewpoint.   He says it is in his client's interest to join forces with Firestone in showing that the accident was caused by the owner's misuse of the tire.   We do not know whether the disclosure of the Kurt memorandum to Firestone was a cause or a result of that tactical decision.   We do know that counsel for Big Four says he shared the Kurt memorandum with Firestone because he thought it was in the interest of his client to do so—a motivation which a court would normally assume to exist, absent a charge of fraud or malpractice.

An assumption by a court that it knows better than counsel what serves the “interest” of his client is no more than uninformed speculation.   The process of selecting a viable theory of attack or defense is peculiarly the function of trial counsel, and his decisions may be based in part upon matters which are not and will not be in the records of the court.   These considerations will include information which the attorney has received in confidence, and the client's own preferences, which may not be made known to others.

The decision announced by my colleagues makes it hazardous for a litigator to have any communication with another attorney about the case unless he is prepared to disclose the same to every other party.   This decision opens a new field for boilerplate interrogatories starting with:  “Has your attorney had any communication with any other party or attorney except in writings furnished to all counsel of record?”

I would deny the petition.

FOOTNOTES

1.   Although listed on the record as a Real Party in Interest, Shell Oil Company is not involved in this proceeding.

2.   Since issuing our alternative writ, we have been advised that the parties have entered into a stipulation, limiting the expert witness that may be called by the parties.   Mr. Kurt is not among the experts therein listed.   Under those circumstances, the issue as to petitioner's right to take Mr. Kurt's deposition has become moot.   The issue as to petitioner's access to the report is not thereby rendered moot.   The details incorporated in that report may well assist petitioner's presently-to-be-called experts in preparing for his testimony.

3.   Both Firestone and Big Four rely on contentions that petitioner was negligent in his operation of the changing machine and that he was, improperly, attempting to mount a 16” tire on a 16 1/212 rim.

KINGSLEY, Associate Justice.