By J. Albert Garcia, Esq.
Armenta v. Superior Court
(2002) Daily Journal D.A.R. 9676In Armenta v. Superior Court (2002) DJ D.A.R. 9676, the California Second District Court of Appeal affirmed the principle that the work product privilege cannot be waived unless all parties to a joint prosecution agreement consent to the waiver of the privilege.
This case arose when Nora Armenta ("Armenta"), on behalf of the Los Angeles Department of Water and Power ("DWP"), sued James Jones Co. ("Jones") under the California False Claims Act alleging that Jones and other defendants had sold water systems valves to DWP that did not meet contract specifications. Richard Maas ("Maas") was retained as Armenta's and DWP's joint expert. To protect work product of the joint relationship, Armenta and DWP executed a joint prosecution agreement. The agreement sought to protect the attorneys' work product and applied to information "received from other counsel or jointly obtained by any one counsel on behalf of the other counsel" and continued regardless of "any conclusion or resolution of the action."
Thereafter, DWP settled with Jones and sought approval of a settlement agreement with Jones which stated DWP would divulge all case-related information, including expert reports prepared by Maas. The trial court found Maas' reports were covered by the joint prosecution agreement, but concluded that prohibiting Jones from using DWP information would unfairly prejudice Jones. The court thus overruled petitioners' objections to the settlement agreement, and ruled that the information sought could be produced and used for any and all purposes.
Armenta filed a writ of petition with the court of appeal, arguing that DWP had no authority to waive work product privilege. The court agreed, holding that parties with common interests may share confidential information without waiving work product privilege. The court acknowledged that Maas' reports were the result of the joint relationship and reasoned that denial of access to DWP's information would not unfairly prejudice Jones where it had an opportunity to generate comparable evidence. DWP's willingness to waive privilege did not vitiate Armenta's own reasonable expectations that the information would remain confidential. As such, the joint prosecution agreement provided full protection, and DWP had no authority to waive Armenta's privilege. Accordingly, the appellate court granted Armenta's petition for writ of mandate.
Lewis Brisbois Bisgaard & Smith LLP has prepared this article for informational purposes only and it is not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Readers should not act upon this information without seeking professional counsel. If you want legal advice, you must consult a lawyer.
© Lewis Brisbois Bisgaard & Smith LLP 2002
