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Meza v. H. Muehlstein & Co.

August 18, 2009

TERESA MEZA, PLAINTIFF AND APPELLANT,
v.
H. MUEHLSTEIN & CO., ET AL, DEFENDANTS AND RESPONDENTS.



APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Affirmed. (Los Angeles County Super. Ct. No. VC035026).

The opinion of the court was delivered by: Kitching, J.

(opn. on rehearing; prior opn. not certified for publication)

CERTIFIED FOR PUBLICATION

In personal injury actions involving numerous defendants, separate counsel frequently represent the defendants because their interests are not precisely the same. The defendants, however, often share many common interests, including determining the nature and scope of the plaintiff‟s injuries and the amount of the plaintiff‟s damages. Furthermore, the defendants may be able to decrease litigation costs by cooperating and sharing information with each other. Attorneys for the defendants therefore sometimes engage in discussions regarding their respective clients‟ common interests. The primary issue in this case is whether attorneys waive the attorney work product privilege by engaging in such discussions.

This issue arose when defendant and respondent Lucent Polymers, Inc. (Lucent) moved to disqualify the Metzger Law Group (the Metzger firm) from representing plaintiff and appellant Teresa Meza. Lucent and other joining defendants argued that the Metzger firm should be disqualified because it hired Bret Drouet, an attorney who previously represented one of the defendants and who participated in meetings in which defense counsel disclosed privileged work product.

In opposition to Lucent‟s motion, Meza argued that defendants‟ attorneys waived the attorney work product privilege by disclosing their thoughts and impressions about the case to counsel for other defendants. The trial court rejected that argument, found that under the common interest doctrine the defendants did not waive the attorney work product privilege, and granted Lucent‟s motion.

We affirm. California recognizes the common interest doctrine. Under that doctrine, defendants‟ attorneys did not waive the attorney work product privilege by communicating with each other regarding their respective clients‟ common interests. The trial court therefore did not abuse its discretion in its order disqualifying the Metzger firm.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2001, Meza filed a complaint against Joe‟s Plastics, Inc. (Joe‟s Plastics) and numerous other defendants for personal injuries allegedly resulting from her exposure to toxic chemical products. In October 2002, Meza filed a first amended complaint, wherein she named additional defendants, including Lucent, for a total of 17 named defendants. At least 15 of these defendants retained separate counsel and filed separate answers to Meza‟s amended complaint. Attorney Drouet of the law firm of Waters, McCluskey & Boehle, represented defendant Joe‟s Plastics.

Meza alleged that from 1996 to 2000, she worked as a sorter and packager for Aztec Concrete Accessories, Inc. in Fontana, California. She further alleged that as a result of her workplace exposure to hundreds of toxic chemicals negligently "produced, refined, mixed, formulated, developed, researched, tested, inspected, manufactured, labeled, advertised, warranted, marketed, recommended, sold, distributed and delivered" by defendants, she sustained injuries to her internal organs, and became ill with asthma, reactive airways disease, and interstitial pulmonary fibrosis.

In March 2003, Joe‟s Plastics filed a proposed case management conference (CMC) order and an accompanying declaration by Drouet. Drouet stated in his declaration that defendants‟ counsel had engaged in two exhaustive and detailed conferences to produce the proposed CMC order. The proposed CMC order stated, in essence, that defense counsel could exchange information regarding their common interests without waiving the attorney-client and attorney work product privileges.*fn1

With the exception of some minor modifications not relevant here, the trial court adopted the proposed CMC order as an order of the court in April 2003.

In May 2003, defendants entered into a Joint Defense Cost Sharing Agreement. This agreement, which was signed by Drouet on behalf of Joe‟s Plastics, provided that the defendants would create a common defense fund to share certain joint defense costs incident to the common defense, including fees for depositions of percipient and expert witnesses, expert preparation, site inspection costs for consultants and experts, compilation of medical records by consultants and experts, medical examinations, data base creation and maintenance by consultants and experts, and costs of deposition transcripts.

Drouet participated with counsel for the other defendants in many meetings and telephone conferences and exchanged numerous emails with them. On these occasions, defense counsel shared their thoughts and impressions regarding (1) the plaintiff, including her medical condition, discrepancies in her claims, and her presentation as a witness, (2) the plaintiff‟s attorneys, anticipating and analyzing their litigation strategies, (3) the plaintiff‟s percipient and expert witnesses, (4) the joint defense consultants and experts, (5) a site assessment performed at the location where the plaintiff was employed, (6) trial preparation and strategy, and (7) other factual issues and legal strategies. Meza concedes for purposes of this appeal that counsel for defendants, including Drouet, shared their individual work product concerning this litigation.

In January 2004, the trial court entered judgment in favor of defendants and against Meza on the ground that she failed to show any admissible expert evidence establishing causation. Meza timely appealed the judgment to this court (Meza I). In July 2004, while the appeal in Meza I was pending, Drouet became an associate of the Metzger firm, counsel for Meza.

In October 2004, the trial court entered an order granting a motion to disqualify the Metzger firm. Meza timely appealed that order (Meza II). Meza claims, and defendants do not dispute, that Drouet stopped working for the Metzger firm in February 2005.

In December 2005, in an unpublished opinion in Meza II, this court reversed the trial court‟s order disqualifying Meza‟s counsel, without prejudice, on the ground that the trial court did not have jurisdiction over the matter while Meza I was pending. In January 2007, in an unpublished opinion in Meza I, this court reversed the judgment against Meza and remanded the case to the trial court for further proceedings.

In June 2007, defendant Lucent filed a motion to disqualify the Metzger firm. Defendants and respondents Nova Polymers, H. Muehlstein & Co., Inc., Polyone Distribution Company, and Exchange Plastics Corp. (joining defendants) joined the motion. Meza claims, and defendants do not dispute, that after Drouet left the Metzger firm, but before Lucent filed its motion to disqualify, Meza dismissed Joe‟s Plastics from the lawsuit.

In support of her opposition to the motion to disqualify, Meza filed a declaration by Drouet. Drouet stated that he never directly communicated with defendants other than Joe‟s Plastics, and that counsel for the other defendants never disclosed to him any communications they had with their clients. Drouet further stated that he ...


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