Alameda court must determine whether legal documents are privileged, appeals court says

By Karen Kidd | Mar 28, 2018

SAN FRANCISCO – Alameda Superior Court must determine whether documents sought by a former legal consultant now suing Union Pacific Railroad Co. over asbestos exposure are privileged, according to a state appeals court ruling issued earlier this month.

California's 1st District Court of Appeal, Division Four, granted Dennis M. Fitzpatrick's motion to direct Alameda Superior Court to determine whether the documents he wants produced in his lawsuit against Union Pacific are privileged, said the appeals court ruling issued March 16. 

"In so ruling, we shall provide guidance to the trial court explaining why, should it find that any of the challenged documents are privileged, it cannot order their production, even for a limited purpose," the ruling said. "Our opinion thus resolves both parties' writ petitions."

Justice Jon B. Streeter wrote the appeals court's 15-page ruling while Justice Ignazio J. Ruvolo and Judge Ethan P. Schulman concurred. Schulman is a San Francisco County Superior Court judge assigned to the case and who is sitting pro tem in Division Four until the end of this month, according to the ruling and information on the court's website.

Fitzpatrick sued Union Pacific over personal injuries he claims to have suffered after being exposed to asbestos "and other toxic chemicals" while employed as a legal consultant by Union Pacific's predecessor Southern Pacific Railroad Co., according to the appeals court's ruling. At trial, Fitzpatrick's counsel asked the court to force Union Pacific to produce documents that Fitzpatrick produced or received while working for Union Pacific's predecessor, documents Union Pacific claimed were protected by client-attorney privilege, according to the ruling.

Alameda Superior Court, "in an apparent attempt to reach a middle ground," ordered the documents "be disclosed to Fitzpatrick for the limited purpose of allowing him to review them prior to his deposition, but not retain them," the ruling said. "Neither party was satisfied."

Fitzpatrick and Union Pacific both appealed, with Fitzpatrick claiming the trial court should have determined whether documents are privileged and Union Pacific arguing that the documents are privileged and should not be disclosed even for the limited purpose, according to the ruling. The appeals court previously granted a Union Pacific request for a temporary stay of the trial court's order, according to the ruling.

The appeals court found itself in agreement with both sides in the case in reference to the documents issues, Streeter wrote in the ruling. 

"We agreed with Union Pacific that the trial court could not order production of the documents if they are privileged, even for a limited purpose," the ruling said. "We also agreed with Fitzpatrick that the trial court should have considered his arguments about why the documents are not privileged because if Fitzpatrick prevailed on his arguments, then the trial court could order the documents produced without limitations."

A previous appeals court ruling should have satisfied both appeals, Streeter wrote in the ruling. 

"Our solution was to issue an alternative writ of mandate in response to Fitzpatrick's writ petition that would have the effect of resolving his petition and Union Pacific's petition," the most recent ruling said. "Specifically, we directed the trial court that it must consider Fitzpatrick’s arguments regarding why the documents are not privileged. 

"We then provided additional guidance to the trial court on how to proceed once it addressed Fitzpatrick’s arguments. We explained that if the trial court determined that any of the challenged documents are not privileged, and the documents are otherwise discoverable, then the court should order Union Pacific to produce them to Fitzpatrick. If, however, the trial court determined that any of the challenged documents are privileged, we said that the court could not order Union Pacific to produce them to Fitzpatrick for any purpose."

However, Fitzpatrick was not satisfied with the additional guidance the appeals court provided to the trial court, disagreeing with the appeals court's conclusion that the documents could not be produced for a limited purpose if they are privileged, according to the most recent ruling. 

"He convinced the court not to comply with the alternative writ, thus placing the matter back before us for plenary consideration," the most recent ruling said.

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