Confidentiality of Environmental Site Assessments: Trying to Make Sure What You Know Can't Hurt You

As one of the first steps in virtually every real estate transaction taking place in this country, one of the parties usually evaluates the potential for environmental contamination of the facility¹ in question. According to anecdotal reports, an increasing number of deals have, in the vernacular, "cratered" as a result of discovery of environmental contamination. Discovery of such this contamination raises the specter of enormous, potential liability for the anticipated costs of environmental clean-up or remediation required by regulatory agencies.² To assist in discovering this oft-hidden condition and to avoid potential, unanticipated liability, a thriving and growing industry of environmental consulting has sprung up.

Although these expert environmental consultants³ are relative newcomers to real estate transactions, the "environmental site assessments"⁴ they perform are vital to the decision-making process of buyers, sellers, and lending institutions.⁵ To evaluate the potential for environmental problems at a facility, they investigate its land use history, its contacts with regulatory authorities and its current operation and condition. In addition, where warranted, suspected areas may be sampled to determine the presence of chemical contaminants. The consultants analyze the test results and may come to conclusions about the areal extent of, the human health and environmental risks posed by, the appropriate clean-up or remediation that should be undertaken to address, and the anticipated costs of plans to remediate contamination at the facility.

A thorough environmental assessment has the potential for uncovering information, both positive and negative, about a facility which could significantly affect its subsequent marketability or use. A prospective purchaser can avoid costly surprises if a prepurchase assessment detects a potential, significant problem and the purchase is not consummated or the cost of the clean-up is reflected in a reduced purchase price. On the other hand, as the result of such an audit, the prospective seller may learn that what was thought to be a considerable hindrance to the marketability of the facility is limited in extent and readily remedied.

Perhaps more significantly from a private party's perspective, an environmental problem discovered by these assessments may be exacerbated exponentially if a government agency is required to be advised or a potentially affected third party learns of the problem and seeks to compel remediation on a time schedule inconsistent with the responsible party's ability to fund the remediation. Indeed, environmental enforcement or cost recovery actions are a likely consequence where a contaminated facility is involved. In such actions, a facility owner or operator may well want to maintain confidentiality and prohibit the disclosure of what certain experts reported to them about the environmental conditions and potential remediation strategies and costs. Unless precautions have been taken prior to the commencement of such actions, this crucial information could be brought to light by requesting the testimony of the facility owner or operator's own environmental consultants.

This paper recommends certain minimum procedures for the retention of expert consultants and for communicating with them. These procedures are designed to enable parties owning or operating facilities to have the benefit of as complete an analysis of potential environmental problems and solutions as possible, with the least risk of unintended or compelled disclosure or loss of confidentiality of sensitive or potentially damaging information. We first discuss the applicable legal principles forming the foundation for the recommended procedures.

I. PRIVILEGED AND PROTECTED COMMUNICATIONS.

A. The Setting.

In the past, when a party found it necessary to determine the state of a facility's environmental contamination, its representative would make arrangements for services directly with an environmental consultant. The representative ordinarily would contact a number of consulting, engineering or geotechnical firms, explain what was desired and, after determining the lowest price for competent service for the agreed scope of work, retain these expert consultants. In almost every case, these expert consultants would be provided all necessary information available about the site and have free and unfettered access to the facility in order to conduct physical investigations and, if necessary, testing of various environmental conditions. Unfortunately, should there be later litigation regarding the environmental condition of the facility, any reports prepared by these consultants would not be protected from disclosure either to private or, even more ominously, governmental litigants. To understand this point requires a bit of background.

B. Description of the Discovery Process.⁶

Prior to the initiation of litigation, a party may refuse to disclose work done by its expert consultants. That is, unless the work of its expert consultants is required to be disclosed pursuant to some statutory mandate such as California's Calderon Act,⁷ it may properly be treated as confidential and protected from disclosure unless a party voluntarily discloses it to third parties. Once litigation is filed, however, government agencies or other litigation adversaries will usually seek through "discovery" to obtain all information available about environmental problems at the site. "Discovery" is the formal mechanism⁸ by which the parties in litigation seek, pursuant to various statutorily authorized means,⁹ to obtain "discoverable" information. Thus, the ability of a party to protect its expert consultants' work from disclosure will depend on whether it is "discoverable."

The term "discoverable" refers to a category of information -- relevant, non-privileged facts and contentions on which a party's litigation position is based.¹⁰ It is all too apparent that the work of expert consultants concerning the environmental problems at a facility would be relevant in environmental enforcement litigation and thus, "discoverable."

But information highly relevant in such litigation, such as site assessments prepared by environmental consultants, is still not discoverable if it is privileged or otherwise protected from discovery.¹¹ The privilege for confidential attorney-client communications and the protection provided the work product of attorneys are the two principal bulwarks against unintentional or compelled disclosure of the work of expert consultants. Another still-developing privilege is what is known as the self-evaluative privilege. We discuss each in turn.

C. The Lawyer-Client Privilege.

The lawyer-client¹² privilege protects confidential communications¹³ between the client and the lawyer made in the course of an attorney-client relationship.¹⁴ On their face, communications between a non-lawyer officer or employee of the seller, purchaser or operator of a facility and a retained expert consultant would not be a privileged lawyer-client communication.¹⁵ Indeed, in some cases, communications between the expert consultant and counsel (either in-house or outside counsel) have not been held to be privileged attorney-client communications.¹⁶ The better rule, however, is that communications between the client-retained expert consultant and an attorney should be privileged attorney-client communications.¹⁷ There are two bases for this view.

First, at least in California¹⁸, the Evidence Code specifically protects confidential communications "reasonably necessary for the accomplishment of the purpose for which the . . . lawyer was consulted."¹⁹ Confidentiality of a communication is not lost if the communication is made by the lawyer to a person to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.²⁰ Thus, communications between the lawyer and the client's expert consultant (a person who is not the client) are, at the very least, arguably privileged attorney-client communications if the disclosure of the information is necessary for the expert consultant to accomplish the purpose for which he or she was hired.²¹

Second, communications between the expert consultant and the lawyer will be privileged if the information is most profitably communicated between the lawyer and the expert consultant.²² Put another way, if the information to be communicated is technical information which the client could not learn or properly express to the attorney it will most probably be held to be a privileged attorney-client communication.²³

The attorney-client privilege would apply as well if the seller, the buyer or the operator of a facility utilizes the services of its own employees as expert consultants and the communication occurs between these employee-expert consultants and seller's, buyer's or operator's counsel. The rule articulated in the leading California case is difficult to paraphrase,²⁴ but, generally speaking, communications between the attorney and the employee-expert consultants will be deemed to be privileged attorney-client communications.²⁵

The attorney-client privilege can be waived by the client. For example, if the communication is made in a fashion in which it is disclosed to third parties who are not connected with the client, the attorney-client privilege is waived.²⁶ For our purposes, the most important waiver of the attorney-client privilege is the one caused by designating the expert consultant as an expert witness to testify at trial.²⁷ If a party is going to call the expert consultant as a witness at trial, the attorney-client privilege is waived; the confidential nature of the communication is then lost and the client is deemed to have consented to disclosure of the information.²⁸ For these reasons, expert consultants who are independent of those performing confidential environmental assessment work are oftentimes designated as expert witnesses at trial.

D. The Attorney Work Product Doctrine.

The second protection accorded the work of expert consultants is provided by the court-created²⁹ and statutorily recognized attorney work product doctrine.³⁰ The attorney work product doctrine has two purposes. First, it is intended to preserve an attorney's right to prepare a case for trial with the degree of privacy necessary for thorough preparation and investigation of both its favorable and unfavorable aspects. Second, the doctrine is intended to prevent one attorney from taking unfair advantage of a litigation adversary's efforts and diligence in developing relevant information. The doctrine protects the attorney's work product, including the attorney's writings and the work product generated by persons who assist the attorney in case preparation.³¹ The work product privilege is not limited to documents prepared in anticipation of litigation, but also applies to the work product generated by an attorney in the attorney's role as a counselor.³²

When a person is retained by an attorney as an expert consultant to advise the attorney, the expert consultant's identity, work and conclusions are protected attorney work product, unless and until that expert consultant is designated as an expert witness to testify at trial.³³ The expert consultant must be retained by the attorney, not by the client, for the doctrine to apply.³⁴ And the protection appears to belong to the attorney, not to the client.³⁵ The protection, however, is not absolute and must be carefully husbanded. Like the attorney-client privilege, work product protection can be waived by disclosure of the information to third parties.³⁶

Documents reflecting the attorney's impressions, conclusions, opinions, or legal research or theories, so-called "derivative" work-product, are not discoverable at all.³⁷ Thus, an attorney's notes of discussions with an expert consultant retained to assist in the preparation of a case are protected work product and are not discoverable.³⁸ On the other hand, non-derivative work product -- materials or documents containing factual information that are not the attorney's evaluation or theories, such as the results of tests conducted for the attorney -- may be discoverable on a showing of "good cause."³⁹

With respect to the reports of expert consultants, the line between derivative and non-derivative work product is sometimes hard to draw. In drawing that line, it is important to remember what is being protected is the attorney's work. Thus, if there are documents obtained, evidence found, or witnesses located by the expert consultant, such matters are not protected because the documents, evidence and witness' knowledge are not the attorney's work (no matter how much work the attorney or the expert consultant put in to unearth these matters).⁴⁰

However, materials or documents not personally created by the attorney can still be the attorney's work product. Materials created by others which reflect the attorney's evaluation or interpretation of the law or the facts involved are work product.⁴¹ Such materials include reports to the attorney of expert consultants who have not yet been designated as an expert witness to testify at trial.⁴² Even as to the reports and work of designated trial experts, some portions or all of such reports are not discoverable. This is because of the complicated relationship of the expert consultant to the attorney.

To paraphrase one court, the expert consultant has a dual role: On the one hand, the expert consultant is retained to render an opinion which may later be presented by court testimony. On the other hand, the expert consultant is also an adviser on trial preparation and tactics for the case. The expert consultant serves as a professional adviser to counsel on the technical and forensic aspects of his or her specialty.⁴³ From the point of view of counsel, the expert consultant's freedom to advise counsel, to educate counsel on the technical problems of the case, to prepare counsel to handle unfamiliar data in court, to analyze the availability of expert opinion and the need for its use by and for counsel, all without hindrance from the opposing side, are important elements of counsel's privacy of preparation. Consultation between expert consultant and counsel may appropriately be given broad immunity from discovery, both as to the expert and as to counsel, because none of the expert consultant's opinion is relevant evidence in the case. That opinion is and will remain wholly irrelevant and immaterial as evidence until the expert consultant is designated as an expert trial witness.⁴⁴ Once the expert consultant is designated as an expert witness to testify at trial, the work product protection of an expert consultant's reports is waived.⁴⁵

E. The Self-Evaluative Privilege.

Another possible privilege is the "self-evaluative" privilege. This privilege is recognized in certain circumstances by some federal courts and by some federal agencies.⁴⁶ This qualified privilege is founded on the theory that entities should be encouraged to conduct internal self-analyses and self-criticism, such as environmental audits, without fear of having to disclose the results to third parties, While the privilege has been recognized in discovery between two non-governmental entities, it has not been applied when the documents are sought by the government.⁴⁷

Government enforcement agencies are in a quandary, however. These agencies want to encourage companies to perform environmental audits to discover actual or potential environmental problems before they occur or at a very early stage when the problem may be more readily corrected. On the other hand, these same agencies want to obtain the information from environmental assessments in connection with enforcement litigation. For example, the U.S. Environmental Protection Agency has said it would seek an audit report only where the EPA determines it is needed to accomplish a statutory mission or where it is deemed by the government to be "material" to a criminal investigation. The EPA further noted it expected these requests to be limited in number, in the scope of the information sought and in the situations in which it was necessary to seek the information. Thus, where information could be obtained from monitoring, reporting or data otherwise available, environmental assessments would probably not be sought.⁴⁸ Even so, unless the information is privileged through the self-evaluative or attorney-client privilege or protected by the attorney work product doctrine, a party will have to rely on the good faith of the government.

F. Summary.

Unless proper steps are taken, third parties such as governmental agencies, private parties or other litigant entities may be able to discover the work of expert environmental consultants. Knowing that the information these consultants unearth could be made available to third parties may tend to discourage the retention of needed consultants, restrict their investigations, or require the client to engage several consultants. Whether such an outcome is good public policy is debatable. In any case, because current law makes their work potentially subject to disclosure in litigation, strategies for the performance of environmental assessments should be developed with the potential for disclosure in mind.

II. SUGGESTED STRATEGIES.

G. In-House Counsel Or Outside Counsel Should Retain All Expert Consultants Evaluating Potential Environmental Problems At The Facility.

If a facility owner or operator desires the full benefit of the expertise and conclusions of expert consultants while minimizing the risk that work of consultants will be disclosed to third parties, the expert consultants should be hired directly by the site owner's counsel. The work of expert consultants retained by the site owner's counsel to assist in investigation and evaluation of the environmental problems at the site and to suggest solutions or approaches to those problems should be considered confidential attorney-client communications and protected attorney work product. Unless the privilege or protection is somehow waived, in both cases, the expert consultant's confidential work should be protected from compelled disclosure in discovery.

H. Expert Consultants Should Be Carefully Instructed On Steps To Preserve Confidentiality Once They Are Retained.

To preserve the confidentiality provided by the attorney-client privilege and the work-product doctrine, expert consultants should be aware of and firmly instructed in the elements of the privileges and how to take precautions against waiver. The following list is a suggested set of instructions which, at a minimum, could be provided to consultants.

1. As much as feasible, the expert consultant's communications with the attorney should be accomplished orally.
2. As much as feasible, the attorney should be the person communicating with the expert consultants.
3. As much as feasible, written communication should be kept to a minimum, including communications with the attorney.
4. Unless specifically requested by the attorney, absolutely no written reports should be prepared.
5. Unless otherwise specifically requested by the attorney, any written reports requested should be prepared in "draft form."
6. Written notes by the consultants should be kept to an absolute minimum consistent with professional practice.⁴⁹
7. Correspondence by the consultant and copies of any correspondence should not be sent to any other person without specific direction from the attorney.
8. No correspondence should be sent directly from the consultant to a third party or a regulatory agency without review and concurrence by the attorney.
9. All technical submissions to regulatory agencies should be thoroughly explained to and reviewed by the attorney.
10. Any correspondence between the attorney and the consultant should be marked "Privileged and Confidential."

While suggestions by attorneys that legal counsel be employed in the communication loop between consultant and client appear self-serving, they are not. The law is such that proper use of counsel in the employment of expert consultants will maximize the benefits of the consultant's assessment and minimize the potential that any adverse information developed thereby can be used against the client.

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(1)

For the purposes of this paper, the term "facility" shall broadly refer to any real property, building, structure, site or other area of land which may be the subject of an environmental site assessment

(2).

Pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), as amended, 42 U.S.C. Section 9601 et seq., and other state statutes cloned from that program, current owners or operators of facilities, as well as specific categories of other parties, have been held both strictly liable (See, United States v. Monsanto Co., 858 F.2d 160 (4th Cir. 1988) cert. denied, 462 U.S. 1132 (1989)) and jointly and severally liable (See, United States v. Chem-Dyne, 572 F.Supp. 802 (S.D. Ohio 1983)) for releases of hazardous substances at their property.

(3)

The term "expert consultant" may sound redundant, but it is an expression used by the courts. Williamson v. Superior Court, 21 Cal.3d 829, 834 (1978). The term is a reflection of the dual role of the expert consultant in litigation. See note 27, below

(4).

In very basic terms, an "environmental site assessment" or "audit" is an investigation of varying degrees of intensity and scope of the physical conditions on or about and the regulatory restraints affecting a particular parcel of real property. Finkelstein, "An Overview of Environmental Considerations Before You Buy or Lease Commercial Real Property" (1989) 7 Calif. Real Prop. J. 1; Del Duca, "The Environmental Consultants' Opinion Letter: A Step Beyond an Environmental Audit" (April, 1990) 20 ELR 10184.

(5)

The interest of lending institutions interest in the state of environmental contamination has been considerably piqued by the recent decision in United States v. Fleet Factors, 901 F.2d 1550 (11th Cir. 1990), cert. denied, 59 U.S.L.W. 3481 (U.S. January 15, 1991) holding a secured lender liable under CERCLA for contamination on property it had taken as a security for a loan even though the lender did not foreclose.

(6)

Although this paper focuses on California law, its usefulness is not limited. The principles discussed are virtually universal in application.

(7)

Owners of former landfill sites are required to submit a solid waste water quality assessment test (sometimes called a "SWAT" test) to the appropriate Regional Water Quality Control Board. Cal. Water Code § 13273(a). These SWAT tests must be certified by experienced professionals. Cal. Water Code § 13273(b). The Calderon Act also requires the operator of a former solid waste disposal site to submit to the appropriate air pollution control district or air quality management district a solid waste air quality assessment test report containing certain specified information. Cal. Health & Safety Code § 41805.5. Unless exempted, operators of inactive solid waste disposal sites are required to complete a questionnaire to allow the districts to evaluate the site. Cal. Health & Safety Code §§ 41805.5(b) & (e). Air SWAT tests may be used in the risk assessment procedure occasioned by the recently enacted Air Toxic Hot Spots legislation to determine which sites qualify for special attention. Cal. Health & Safety Code §§ 44300 et seq

(8).

It is, however, not always necessary to engage in these formal procedures. Parties often mutually agree to produce information voluntarily in order to avoid formal discovery and the sometimes associated expense and delay.

(9)

The methods of obtaining discovery are set forth in the California Code of Civil Procedure. They are: oral depositions (taking and recording of testimony under oath), interrogatories (written questions), inspections of documents, things, and places, physical examinations, requests for admission (written questions asking a party whether it admits or denies the existence of a particular fact or whether it makes a specific contention), and exchange of expert trial witness information. Cal. Code of Civ. Proc. § 2019.

(10)

The scope of what is discoverable is quite broad: "[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . , if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence." Cal. Code of Civ. Proc. § 2016.

(11)

Cal. Code of Civ. Proc. § 2016.

(12)

A lawyer is a person authorized, or reasonably believed by the client to be authorized, to practice law. Cal. Evid. Code § 950. The client is the person who, either directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal advice from the lawyer in the lawyer's professional capacity. Cal. Evid. Code § 951.

(13)

The confidential communication is information transmitted between the lawyer and the client in the course of a client-lawyer relationship and in confidence by a means which, so far as the client knows, is intended to protect the information from disclosure to third parties (other than those who are present to further the interest of the client, to whom disclosure is reasonably necessary for the transmission of information or to the accomplishment of the purpose for which the lawyer is consulted). Cal. Evid. Code § 952.

(14)

Cal. Evid. Code §§ 950-962.

(15)

See Wilson v. Superior Court, 226 Cal.App.2d 715, 723-724 (1964); Bank of Orient v. Superior Court, 67 Cal.App.3d 588, 598 (1977). It may be argued, however, the expert consultant's reports made in the course of evaluating position concerning the environmental problems at a facility, were to be transmitted to the party's attorney and were therefore privileged attorney-client communications. See People ex rel. Dept. of Public Works v. Glen Arms Estate, Inc., 230 Cal.App.2d 841, 859 (1964) (appraisal report prepared by employee not given directly to attorney but used by state agency in negotiation with landowners was privileged in litigation after negotiations failed).

(16)

Brown v. Superior Court, 218 Cal.App.2d 430, 438 (1963); Grand Lake Drive In, Inc. v. Superior Court, 179 Cal.App.2d 122, 126 (1960).

(17)

See National Steel Products Co. v. Superior Court, 164 Cal.App.3d 476, 483 (1985); notes 23 through 25 below.

(18)

The rules of privilege in federal courts are those developed by federal courts. However, in certain instances, federal courts must apply state rules of privilege. Fed. Rule of Evid. 501.

(19)

Cal. Evid. Code § 912(d).

(20)

Cal. Evid. Code § 952.

(21)

National Steel Products Co., supra, 164 Cal.App.3d at 483.

(22)

De Los Santos v. Superior Court, 27 Cal.3d 677, 683-685 (1980).

(23)

"The client did not directly order this report, because it was prepared by the expert at the request of, and delivered to, the attorney. This fact . . . does not prevent application of the attorney-client privilege if the circumstances indicate that the expert was retained to examine the client or the client's confidential affairs for the purpose of discovering (and reporting to the attorney) technical data which the layman is incapable of discovering, or which the layman cannot express in the proper technical language." San Diego Professional Ass'n v. Superior Court, 58 Cal.2d 194, 199 (1962); National Steel Products Co., supra, 164 Cal.App.3d at 483 (report by expert prepared for attorney held to be privileged attorney-client communication).

(24)

The leading California case in this area, Chadbourne v. Superior Court, 60 Cal.2d 723, 736 (1964), sets forth an eleven-part scheme to determine the availability to corporations (as artificial persons) of the attorney-client privilege. The case also discusses the means by which that privilege may be waived by the corporation in comparison to a waiver by an individual.

(25)

Upjohn Co. v. United States, 449 U.S. 383, 390 (1981). In expanding the scope of the corporate "client" to include those who had information on matters within the scope of the employee's corporate duties, the Supreme Court stated: "[T]he privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice." Ibid. In that case, the attorney-client privilege was held to protect statements of employees made to counsel for the corporation when counsel was investigating certain alleged illegal activities by the corporation. However, Chadbourne, see note 24, above, is still the law in California.

(26)

Cal. Evid. Code § 912; see Williamson, supra, 21 Cal.3d at 837. An interesting aspect of the waiver doctrine and one that is especially relevant in the case of environmental regulations is the so-called "joint defense privilege." The claim is that cooperation between defense lawyers for different, potentially antagonistic, parties in defense of a lawsuit is not a waiver of the attorney-client privilege. See Raytheon Co. v. Superior Court, 208 Cal.App.3d 683, 687 (1989). It has been held there is no joint defense privilege in California. Instead evidence was to be taken on waiver to determine if disclosures between counsel were necessary for the accomplishment of the client's purpose in consulting with counsel. Id. at 688-689.

(27)

In an attempt to avoid an unseemly and never-ending Alphonse-Gaston scene, the designation of expert witnesses to testify at trial is accomplished pursuant to a complex statutory scheme. That scheme basically provides, if a request to designate expert witnesses has been made, expert trial witnesses are simultaneously designated by all parties at the same time a specific number of days prior to trial. Cal. Code of Civ. Proc. § 2034. Until designated as an expert witness, the expert consultant remains a consultant and his or her identity, existence and work cannot usually be discovered. E.g. Williamson, supra, 21 Cal.3d at 834 ("[T]he initial status of the expert as a consultant changes once the expert becomes a designated prospective witness."); Sanders v. Superior Court, 34 Cal.App.3d 270, 278 (1973), 280; Scotsman Mfg. Co. v. Superior Court, 242 Cal.App.2d 527, 532 (1966)

(28).

Ibid.; National Steel Products Co., supra, 164 Cal.App.3d at 484.

(29)

The classic description of work-product is found in Hickman v. Taylor, 329 U.S. 495, 510-511 (1947): "Proper preparation of a client's case demands that [the lawyer] assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. . . . This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways -- aptly though roughly termed . . . as the 'work product of the lawyer'."

(30)

Although statutorily recognized in Code of Civil Procedure § 2018, the work-product doctrine is not a privilege that is expressly recognized in the Evidence Code. Evidence Code § 911 provides that, "[e]xcept as provided by statute: (a) "[n]o person has a privilege to refuse to be a witness . . . [or] (b) . . . to refuse to disclose any matter . . . ."

(31)

E.g., San Diego Professional Ass'n, supra, 58 Cal.2d at 204; Williamson, supra, 21 Cal.3d at 834; Rodriguez v. McDonnell Douglas Corp., 87 Cal.App.3d 626, 647-648 (1978); National Steel Products Co., supra, 164 Cal.App.3d at 487-489.

(32)

Rumac, Inc. v. Bottomly, 143 Cal.App.3d 810, 815-816 (1983); Aetna Casualty & Surety v. Superior Court, 153 Cal.App. 467, 478-479 (1984).

(33)

E.g., Williamson, supra, 21 Cal.3d at 834; Scotsman Mfg. Co., supra, 242 Cal.App.2d at 531; Swartzman v. Superior Court, 231 Cal.App.2d 195, 202 (1964); see note 27, above.

(34)

Bank of Orient, supra, 67 Cal.App.3d at 599 (expert retained by board of directors to accomplish investigation not protected attorney work product); Jasper Construction, Inc. v. Foothill Junior College Dist., Cal.App.3d 1, 16 (1979) (client hired expert, not attorney, and so work-product protection did not apply.

(35)

Travelers Ins. Companies v. Superior Court, 143 Cal.App.3d 436, 453 (1983); Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 265 (1985).

(36)

In Raytheon, supra, Cal.App.3d at 689, it was claimed that disclosure to other defendants was a waiver of attorney work product protection. The Court sent the case back: “[T]here is no evidence developed . . by which [the trial] court could determine whether work product was here disclosed under circumstances inconsistent with claiming the privilege. There is no detailed description of the nature of the administrative investigation [by the EPA] and the various interests each party had at stake during its progress; yet these facts are crucial to determining whether disclosure could reasonably be made with an expectation of confidentiality.” Ibid.

(37)

Cal. Code of Civ. Proc. § 2018(c).

(38)

This is true unless the expert consultant is a percipient witness; that is, the expert consultant has first hand knowledge of the events leading to the litigation. It may be that, unless interlaced with the attorney’s impressions and theories, the production of such notes can be compelled with a showing of sufficient good cause. See note 43 below.

(39)

Cal. Code of Civ. Proc. § 2108(b) provides work product "is not discoverable unless denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim for trial or will result in an injustice.

(40)"

See Mack v. Superior Court, 259 Cal.App.2d 7, 11 (1968) (information regarding events provable at trial, identity and location of physical evidence). The questions must be carefully thought out. For example, it is proper to require the disclosure of a list of percipient witnesses. But requiring the disclosure of the names of witnesses intended to be called at trial is an invasion of protected work product. City of Long Beach v. Superior Court, 64 Cal.App.3d 65, 73 (1976).

(41)

Mack, supra, 259 Cal.App.2d at 10.

(42)

Ibid.; Swartzman, supra, 231 Cal.App.2d 203; Scotsman Mfg., supra, 242 Cal.App.2d at 531

(43)

Scotsman Mfg. Co., supra, 242 Cal.App.2d at 531. In one case, a report had been prepared for the client in prior litigation and counsel had obtained it as background material in his preparation for trial in another, similar, case. National Steel Products Co., supra, 164 Cal.App.3d at 487. The Court set forth a three step process to determine whether such a report is protected work product: (1) The judge determines if the report in whole or in part reflects an attorney's impression, conclusions, opinions or legal research or theories. To that extent, such material is absolutely privileged. (2) The judge then determines which portion of the opinion is advisory or not. The advisory portions are protected work product, but may be discovered upon a showing of good cause. (3) The judge determines whether good cause for discovery outweighs the principles supporting the protection of work product. Id. at 490

(44).

Williamson, supra, 21 Cal. 3d at 834; Swartzman, supra, 231 Cal.App.2d at 202-203

(45).

Ibid. National Steel Products co., supra, 164 Cal.App.3d at 488.

(46)

See e.g, Federal Trade Commission v. TRW, 628 F.2d 207, 210 (D.C. Cir. 1980); Reed, "Environmental Audits and Confidentiality: Can What You Know Hurt You As Much As What You Don't Know?" 13 ELR 10303.

(47)

Federal Trade Commission v. TRW, supra, 628 F.2d at 210.

(48)

12 Environment Reporter p. 1684 (1991)

(49)

Ibid.