Court of Appeal confirms broad scope of attorney-client and work product protection

Fireman’s Fund Insurance Co. v. Superior Court (2011) 196 Cal.App.4th 1263 (California Court of Appeal, Second Appellate District, Division Three) [published]. The trial court ordered an attorney who formerly represented Fireman’s Fund Insurance Co. to answer five deposition questions over objections of attorney-client and work product privileges. The trial court held that the attorney-client privilege applies only to communications directly between and an attorney and his or her client and that the absolute work product privilege applies only to an attorney’s work product that has been memorialized in written form. Fireman’s Fund sought a writ of mandate to vacate the discovery order, arguing that the trial court misconstrued the scope of the attorney-client privilege. Representing the Los Angeles County Bar Association, the Beverly Hills Bar Association, and the Association of Southern California Defense Counsel as amicus curiae, GMSR argued that the work product privilege extends to an attorney’s unwritten impressions, opinions and research. The Court of Appeal agreed and issued a writ of mandate on both grounds. First, the court held that under Evidence Code section 952, the attorney-client privilege covers both confidential communications and “a legal opinion formed” by an attorney. Second, the court held that despite the arguably contrary language of California’s absolute work product statute, the privilege applies to non-written work product—that a contrary interpretation would create absurd results and contradict both the statute’s legislative history and the historical development of the work product privilege on the state and national levels.