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Supreme Court of California
December 20, 1984
S.F. No. 24727
[*594] [**643] [***887] Petitioners, plaintiffs below, seek a writ of mandate ordering respondent superior court to vacate its order compelling plaintiff Bette Gae Mitchell to answer certain questions propounded to her by defendant real parties in interest at her deposition, which she declined to answer on instructions of counsel. The principal issues presented by this case [*595] are whether [****3] defendants' questions seek information protected by the attorney-client privilege and, if so, whether plaintiff has waived that privilege in pursuing the present action. For reasons outlined herein, we will conclude that the information sought by defendants is covered by the attorney-client privilege and that no waiver thereof has occurred.
Statement of Facts
The relevant facts of the case were accurately set forth by Justice Martin of the Court of Appeal and are summarized here in essentially verbatim form.
Gary A. Mitchell and Bette Gae Mitchell are two of more than one hundred plaintiffs who reside near the Thompson-Hayward Chemical Plant near Fresno, California. Petitioners and the other plaintiffs have filed lawsuits alleging contamination of the air and ground water in the vicinity of their homes. Plaintiffs allege the underground aquifer has been contaminated by the chemical dibromochloropropane (DBCP) which was used as an agricultural soil fumigant to kill microscopic, parasitic root worms known as nematodes. They sued a number of entities who manufactured, marketed and distributed DBCP and other involved chemicals.
Plaintiffs' second amended complaint seeks compensatory [****4] and punitive damages based upon seven causes of action for personal injuries and property damage, including one for intentional infliction of emotional distress. Plaintiffs assert that the water contamination has caused them "considerable emotional pain, anguish and distress, [***888] since they are aware that DBCP and the other chemicals are highly toxic and carcinogenic and can produce sterility and genetic damage."
In the course of discovery, defendant T.H. Agriculture and Nutrition Company, [**644] Inc. propounded a number of interrogatories to plaintiff Bette Gae Mitchell. The interrogatories and answers relevant to the instant case are selectively reprinted below:
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
37 Cal. 3d 591 *; 691 P.2d 642 **; 208 Cal. Rptr. 886 ***; 1984 Cal. LEXIS 139 ****
GARY A. MITCHELL et al., Petitioners, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; SHELL OIL COMPANY et al., Real Parties in Interest
Subsequent History: [****1] The Petition of Real Parties in Interest for a Rehearing was Denied February 14, 1985, and the Opinion was Modified to Read as Printed Above.
Disposition: After weighing the various legal and policy arguments propounded by the parties, we are persuaded that to permit discovery of the confidential communications here would constitute an unwarranted abrogation of the attorney-client privilege -- a privilege which is fundamental to the free and open exchange of information and advice between lawyers and their clients, and more broadly to the proper functioning of our judicial system. We thus conclude that the information sought by defendant real parties, with the limited exception of Questions 4 and 5 as discussed above, is covered by the attorney-client privilege and that no waiver of that privilege has occurred. Let a writ of mandate issue, ordering respondent superior court to vacate its order compelling discovery.
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