July 2021 Ethically Speaking - Be Careful Whom You Choose as an Nontestifying Expert

by Robert M. Dato

Imagine you are handling a litigation matter that involves technical issues. Perhaps it concerns allegations of professional negligence. Or maybe the alleged damages are complicated. Or perhaps you just want the perspective that your opposing counsel might bring to the case.

These are but a few examples of when a lawyer might hire a “consultant.” That consultant could eventually be designated as an expert witness if sworn testimony is required to aid the trier of fact. Once such a designation is made, of course, the parties know the identity of the now-former consultant. But what if you don’t intend to have this consultant testify? And what if you’d prefer that the identity of your consultant remain confidential?

Given such facts, at least a fair percentage of lawyers would likely think that the identity of the consultant is protected by the attorney work-product doctrine. However, according to a recent California Court of Appeal decision, Curtis v. Superior Court, 62 Cal. App. 5th 453 (2021), protection under that doctrine is qualified, at best.


The Work-Product Doctrine Under State and Federal Law

The United States Supreme Court in 1947 first recognized the concept that certain work product of an attorney should be protected from disclosure. “[I]t is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel.” Hickman v. Taylor, 329 U.S. 495 (1947). The high court was concerned that opposing counsel could unfairly profit from the hard work of their adversary: “Were such materials open to opposing counsel on mere demand . . . [t]he effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id. at 510-11.

Our state legislature codified the attorney work-product doctrine in 1963. The current version of the statute states:

(a) A writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (b) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

Cal. Civ. Proc. Code § 2018.030.

The statute does not create a “privilege,” although many courts (including the California Supreme Court) have used this term. See Coito v. Superior Court, 54 Cal. 4th 480, 488 (2012). This is because it is not one of the privileges enumerated in Evidence Code section 900 et seq. See Kizer v. Sulnick, 202 Cal. App. 3d 431, 435 (1988). Instead, the statute creates a protection from disclosure in discovery.1

Under federal law, the doctrine is similar but not identical. Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure states: “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).” And under subdivision (4)(D) of Rule 26(b), “a party may not, by interrogatories or deposition, discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or to prepare for trial and who is not expected to be called as a witness at trial.”


The Facts of the Curtis Case

Like many good opinions, the facts giving rise to Curtis begin with another case; we’ll call it “the underlying action.” In the underlying action, Curtis represented defendant employer (Romasanta) in an age discrimination case. As the opinion recounts, “Curtis does not specialize in employment law, so when employment issues arise for his business clients, Curtis routinely consults with nontestifying experts to advise him on employment law, help him investigate and prepare a legal strategy, and provide a plaintiff’s perspective.” Curtis, 62 Cal. App. 5th at 459.

A few weeks before trial, Curtis retained “Doe 1” as a consultant and nontestifying expert. Curtis described Doe 1 as a “plaintiff’s side employment attorney.” Id. at 460 n.4. Curtis consulted with Doe 1 many times during trial. Following a verdict in favor of the plaintiff, Curtis continued to consult with Doe 1 concerning post-trial motions. Id. at 460.

It was here that the underlying case took a critical turn. When plaintiff moved for attorney fees under California Government Code section 12965, Curtis again consulted with Doe 1 in opposing the motion. Doe 1 was a member of the California Employment Lawyers Association (CELA), an organization “dedicated to advancing and protecting the interest of California workers and assisting the attorneys who represent employees in various matters.” Id. CELA “offers members access to online depositories and e-mail ‘Listservs’ that members use to exchange ideas and strategies.” Id. Such information is for members only and is subject to a confidentiality agreement. Id. at 458. Plaintiff’s attorney in the underlying action had posted a message to the Listserv after the jury had returned a verdict in his client’s favor, providing “a colorful account of the strategies and factors” he believed had resulted in the verdict. Id. at 460. Doe 1 forwarded this message to Curtis, who then used it as an exhibit in opposing the attorney fee motion.2

CELA was evidently not pleased when it learned that one of its confidential Listserv messages had been “leaked” to a defendant’s counsel. It brought suit against Doe 1 and four other unnamed CELA members for breach of contract and injunctive relief. CELA alleged that its members must sign a confidentiality agreement to receive access to its Listserv, and that Doe 1 violated that agreement when he forwarded the message to Curtis. The complaint alleged that the Doe defendants “must by necessity be identified by way of discovery.” Id. at 461.

After discovery directed to Curtis’s client failed to reveal who Doe 1 was, CELA deposed Curtis, who refused to disclose the identity of Doe 1. In the resulting motion to compel, Curtis argued in opposition that the identity of Doe 1 was entitled to absolute work-product protection because disclosure would reveal “Curtis’s strategy of using a plaintiff’s-side employment lawyer as a nontestifying consultant ‘and could result in [Curtis] being unable to use [Doe 1’s] services in the future.’” Id. at 462. Alternatively, Curtis asserted that, even if the identity of Doe 1 were entitled only to qualified protection, a balancing of CELA’s interest against the work-product protection weighed against disclosure because (1) Curtis would be hampered in his ability to consult with Doe 1, and (2) “consultants would be discouraged from working with attorneys for fear that a later unmasking would harm their reputation and business.” Id. The trial court granted the motion to compel.

In reviewing the order granting the motion to compel, the court of appeal initially noted that there was no previous California case “specifically addressing whether the identity of a nontestifying expert is protected as work product.” Id. at 470. The court of appeal then found that federal cases favoring nondisclosure were not persuasive because the federal rules are different; under Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure, facts or opinions of a retained, nontestifying expert are not discoverable absent exceptional circumstances. Id. at 471.

The court of appeal then focused on whether disclosure of the identity of Doe 1—rather than the substance of any communications Curtis had with him—was entitled to protection under the work-product doctrine. With respect to the “absolute” protection of the first prong of the work-product doctrine, the court held:

the identity of Doe 1 does not reflect Curtis’s “impressions, conclusions, opinions, or legal research or theories.” [Citation.] Curtis has already disclosed that Doe 1 is a plaintiffs’-side employment lawyer and that Curtis’s strategy in defending employers is to consult a practitioner with experience as a lawyer for plaintiffs. Curtis has not offered any evidence the identification of this particular plaintiffs’-side employment lawyer reveals anything about Curtis’s representation [of his client in the underlying action].

Curtis, 62 Cal. App. 5th at 473 (citing Coito v. Superior Court, 54 Cal. 4th 480, 502 (2012)). Although the court of appeal credited Curtis’s argument that there could be strategic repercussions from the disclosure, “these arguments do not transmute Doe 1’s identity into core work product entitled to absolute protection.” Curtis, 62 Cal. App. 5th at 473.

The Curtis court then found Curtis had “made a foundational showing that identification of Doe 1 may be entitled to qualified work-product protection” because disclosure might chill Doe 1 and discourage other plaintiffs’-side lawyers from consulting with him. Id. at 473-74. However, this was a pyrrhic victory: the court found that CELA had met its burden to establish it had no other means to prove its case and that the balance of factors compelled disclosure: “The prejudice to CELA is even greater in this case because CELA cannot prosecute the action until Doe 1 is identified. Thus, upholding Curtis’s work-product privilege would likely entirely foreclose CELA’s action for breach of its confidential information.” Id. at 474-75.

There are at least two lessons to be learned from Curtis. The first is that attorneys cannot always rely on the work-product doctrine to protect the identity of nontestifying experts. The second is that attorneys have an ongoing duty to ascertain whether information they use in support of moving or opposition papers is not subject to a confidentiality agreement. Using such information may not subject the attorney to liability, but may expose a valuable consultant and thus destroy the relationship between the attorney and the consultant.



(1) In a criminal case, and pursuant to California Penal Code section 1054.6, the work-product doctrine is even broader than in a civil case and prevents disclosure of “any materials or information which are work product as defined in” section 2018.030 (emphasis added).

(2) The court of appeal’s opinion does not explain how Curtis attempted to use the message as evidence opposing the attorney fee motion. It would appear to have little (if any) evidentiary value.           


Robert M. Dato is Of Counsel to Buchalter, A Professional Corporation. He is certified by the State Bar Board of Legal Specialization in Appellate Law and his practice focuses on business litigation as well as post-trial and appellate matters. He is a member of the OCBA Professionalism & Ethics Committee. He can be reached at rdato@buchalter.com. The views expressed here are his own.