Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Los Angeles County Super. Ct. No. VC035026
Metzger Law Group, Raphael Metzger, Gregory A. Coolidge, for Plaintiff and Appellant.
Tropio & Morlan, Scott T. Tropio, Christopher J. Hammond and Jon M. Kasimov for Defendant and Respondent Lucent Polymers, Inc.
Veatch Carlson, Steve R. Segura for Defendant and Respondent Nova Polymers.
Pond North, Frank D. Pond and Sandra L. Gryder for Defendant and Respondent Exchange Plastics Corp.
Poole & Shaffery, John Shaffery and John F. Grannis for Defendant and Respondent Polyone Distribution Company.
Becherer, Kannett & Schweitzer, Shahrad Milanfar for Defendant and Respondent H. Muehlstein & Co., Inc.
KITCHING, J.
INTRODUCTION
This is an appeal from an order disqualifying the Metzger Law Group (Metzger) from representing plaintiff and appellant Teresa Meza. Metzger hired Brett Drouet, an attorney who previously represented one of the defendants in this action. Drouet was privy to confidential and privileged work product of the attorneys for all of the defendants in this action. We conclude that the trial court did not abuse its discretion in disqualifying Metzger from representing Meza.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2001, Meza filed a complaint against Joe’s Plastics, Inc. (Joe’s Plastics) and numerous other defendants for personal injuries allegedly resulting from her exposure to toxic chemical products during the course of her employment. In October 2002, Meza filed a first amended complaint, wherein she named additional defendants, including defendant and respondent Lucent Polymers, Inc. (Lucent). All total, there were seventeen named defendants. At least fifteen of these defendants retained separate counsel and filed separate answers to Meza’s amended complaint. Attorney Brett Drouet of the law firm of Waters, McCluskey & Boehle, represented Joe’s Plastics.
Meza alleged that from 1996 to 2000, she worked as a sorter and packager for Aztec Concrete Accessories, Inc. in Fontana, California. She further alleged that as a result of her workplace exposure to hundreds of toxic chemicals negligently “produced, refined, mixed, formulated, developed, researched, tested, inspected, manufactured, labeled, advertised, warranted, marketed, recommended, sold, distributed and delivered” by defendants, she sustained injuries to her internal organs, and became ill with asthma, reactive airways disease, and interstitial pulmonary fibrosis.
In March 2003, Joe’s Plastics filed a proposed case management conference (CMC) order and an accompanying declaration by Drouet. Drouet stated in his declaration that defendants’ counsel had engaged in two exhaustive and detailed conferences to produce the proposed CMC order. He further stated: “Based on the realities of scheduling and conducting numerous third-party depositions, including Plaintiff’s multiple treating healthcare providers, the likely scheduling and conducting of multiple out-of-state party depositions, the scheduling and conducting of extensive inspections and testing at Plaintiff’s employer’s plant, the scheduling and conducting of multiple specialties of Independent Medical Examinations of Plaintiff . . . Defendants believe they should be give[n] a reasonably sufficient amount of time to perform discovery and investigation in this complex matter . . . .”
The proposed CMC order stated:
“Having heard the comments and proposals of the parties and determining this matter is complex, . . . [¶] IT IS HEREBY ORDERED: [¶] In order to 1) conserve the resources of the Court and to avoid or minimize unnecessary litigation expense, including costs and attorneys’ fees, . . . the Court hereby adopts the following protocol for the maintenance of this action.
“[¶] . . . [¶]
“11. The court recognizes that cooperation among counsel and the parties is essential for the orderly and expeditious resolution of the litigation. The communication, transmission or dissemination of information of common interest among . . . defendants’ counsel, or among the parties, shall be protected by attorney-client privilege, the protections afforded by the attorney work product doctrine, the protections afforded to material prepared for litigation or any other privilege to which a party may otherwise be entitled.”
With the exception of some minor modifications not relevant here, the trial court adopted the proposed CMC order as an order of the court in April 2003.
In May 2003, defendants entered into a Joint Defense Cost Sharing Agreement. This agreement, which was signed by Drouet on behalf of Joe’s Plastics, provided that the defendants would create a common defense fund to share certain joint defense costs incident to the common defense, including fees for depositions of percipient and expert witnesses, expert preparation, site inspection costs for consultants and experts, compilation of medical records by consultants and experts, medical examinations, data base creation and maintenance by consultants and experts, and costs of deposition transcripts.
Drouet participated with counsel for the other defendants in many meetings and telephone conferences and exchanged numerous emails with them. On these occasions, defense counsel shared their thoughts and impressions regarding (1) the plaintiff, including her medical condition, discrepancies in her claims, and her presentation as a witness, (2) the plaintiff’s attorneys, anticipating and analyzing their litigation strategies, (3) the plaintiff’s percipient and expert witnesses, (4) the joint defense consultants and experts, (5) a site assessment performed at the location where the plaintiff was employed, (6) trial preparation and strategy, and (7) other factual issues and legal strategies. Meza concedes “for purposes of this appeal” that counsel for defendants and Drouet “shared their individual work product concerning this litigation.”
In January 2004, the trial court entered judgment in favor of defendants and against Meza on the ground that she failed to show any admissible expert evidence establishing causation. Meza timely appealed the judgment to this Court (Meza I), and the case was assigned case No. B174810. In July 2004, while the appeal in Meza I was pending, Drouet became an associate of Metzger, counsel for Meza.
In October 2004, the trial court entered an order granting a motion to disqualify Metzger. Meza timely appealed that order (Meza II). Meza claims, and defendants do not dispute, that Drouet stopped working for Metzger in February 2005.
In December 2005, in an unpublished opinion in Meza II, this Court reversed the trial court’s order disqualifying Meza’s counsel, without prejudice, on the ground that the trial court did not have jurisdiction over the matter while Meza I was pending. In January 2007, in an unpublished opinion in Meza I, this Court reversed the judgment against Meza and remanded the case to the trial court for further proceedings.
In June 2007, defendant Lucent filed a motion to disqualify Metzger. Defendants and respondents Nova Polymers, H. Muehlstein & Co., Inc., Polyone Distribution Company, and Exchange Plastics Corp. (joining defendants) joined the motion. Meza claims, and defendants do not dispute, that after Drouet left Metzger, but before Lucent filed its motion to disqualify, Meza dismissed Joe’s Plastics from the lawsuit.
In support of her opposition to the motion to disqualify, Meza filed a declaration of Brett Drouet. Drouet stated that he never directly communicated with defendants other than Joe’s Plastics, and that counsel for the other defendants never disclosed to him any communications they had with their clients. Drouet further stated that he did not have any communications with anyone at Metzger regarding this action.
On July 16, 2007, the trial court held a hearing on the motion to disqualify. The court took the matter under submission and conducted an in camera review of certain written communications among defense counsel submitted under seal by Lucent. Meza agreed that an in camera review was necessary but argued that the trial court was required to review all written communications among defense counsel, not only the “hand-picked” emails selected by Lucent.
On July 25, 2007, the trial court granted Lucent’s motion to disqualify Metzger. Meza filed a timely notice of appeal.
CONTENTIONS
Meza makes five major arguments. The first is that Lucent and the joining defendants did not have standing to seek disqualification of her lawyers. Meza also argues that because Drouet did not have an attorney-client relationship with Lucent and the joining defendants, there was no basis for the motion to disqualify Metzger.
Next, Meza contends that Lucent’s motion was based on the false premise that California recognizes a “joint defense privilege,” “common doctrine privilege” or some other joint or common work product privilege among defense counsel. Because no such privilege exists, Meza argues, the trial court erred in granting the motion.
Meza further argues that Lucent failed to establish that the communications among Drouet and other defense counsel were protected under the common interest doctrine. Consequently, Meza claims, Drouet was not privy to any protected communications, and thus his employment by Metzger was not ground for the firm’s disqualification.
Finally, Meza argues that even if Drouet were privy to privileged information, the trial court erred in disqualifying Metzger because Drouet did not share any such information with Metzger and because Meza will suffer irreparable harm if the firm is unable to represent her.
DISCUSSION
1. Standard of Review
“Generally, a trial court’s decision on a disqualification motion is reviewed for abuse of discretion. [Citations.] If the trial court resolved disputed factual issues, the reviewing court should not substitute its judgment for the trial court’s express or implied findings supported by substantial evidence.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee).)
2. The Attorney Work Product Doctrine
The Legislature has codified the attorney work product doctrine under Code of Civil Procedure section 2018.010 et seq. (See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814 (Rico).) Section 2018.020 provides: “It is the policy of the state to do both of the following: (a) Preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases. [¶] (b) Prevent attorneys from taking undue advantage of their adversary’s industry and efforts.”
Unless otherwise indicated, further undesignated statutory references are to the Code of Civil Procedure.
An attorney’s work product is the attorney’s “ ‘effort, research, and thought in the preparation of his client’s case. It includes the results of his own work, and the work of those employed by him or for him by his client, in investigating both the favorable and unfavorable aspects of the case, the information thus assembled, and the legal theories and plan of strategy developed by the attorney—all as reflected in interviews, statements, memoranda, correspondence, briefs, and any other writings reflecting the attorney’s “impressions, conclusions, opinions, or legal research or theories” and in countless other tangible and intangible ways.’ ” (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1253-1254, fn. 4, italics omitted)(BP Alaska); see also 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1389-1390.)
An attorney has a qualified privilege against the discovery of general work product and an absolute privilege against disclosures of writings containing an attorney’s impressions, conclusions, opinions or legal theories. (§ 2018.030; BP Alaska, supra, 199 Cal.App.3d at p. 1250.) Although the attorney is the holder of the work product privilege, a client has standing to assert the privilege on behalf of the attorney in the attorney’s absence (id. at p. 1257), because the privilege “is intended for the protection of litigants, not just attorneys.” (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 134 (Dowden).)
3. Drouet Was Disqualified From Representing Meza
When an attorney successively represents clients with adverse interests, the attorney has a potential conflict of interest. If there is a “substantial relationship” between the subjects of the antecedent and current representations, the attorney is disqualified. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283 (Flatt).) In other words, if an attorney represents client X, then represents client Y, and X and Y have adverse interests, the attorney has a conflict of interest and is disqualified from representing Y if his previous representation of X is substantially related to his subsequent representation of Y.
“The ‘substantial relationship’ test mediates between two interests that are in tension in such a context—the freedom of the subsequent client to counsel of choice, on the one hand, and the interest of the former client in ensuring the permanent confidentiality of matters disclosed to the attorney in the course of the prior representation, on the other. Where the requisite substantial relationship between the subjects of the prior and the current representations can be demonstrated, access to confidential information by the attorney in the course of the first representation (relevant, by definition, to the second representation) is presumed and disqualification of the attorney’s representation of the second client is mandatory; indeed, the disqualification extends vicariously to the entire firm.” (Flatt, supra, 9 Cal.4th at p. 283.)
Under the substantial relationship test, Drouet was clearly disqualified from representing Meza in this action. There was more than a mere substantial relationship between Meza’s suit and Drouet’s representation of Joe’s Plastics. Drouet represented Joe’s Plastics in the very same suit Meza was pursuing. This was a per se conflict of interest that disqualified Drouet from representing Meza in this case. (See Rules Prof. Conduct, rule 3-310(C)(2).)
4. The Court Did Not Abuse Its Discretion in Disqualifying Metzger
Meza argues that even if Drouet were disqualified from representing her, Metzger was not. Meza claims that Drouet did not have communications with anyone at Metzger regarding this case and that Metzger has employed extensive screening procedures to prevent Drouet from disclosing confidential information.
“As a general rule in California, where an attorney is disqualified from representation, the entire law firm is vicariously disqualified as well. [Citations.] This is especially true where the attorney’s disqualification is due to his prior representation of the opposing side during the same lawsuit.” Henriksen v. Great American Savings & Loan (1992) 11 Cal.App.4th 109, 114-115, fn. omitted (Henriksen).) Accordingly, an “ethical wall” between an attorney with confidential information and his or her firm will generally not preclude the disqualification of the firm. (Id. at p. 115; Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 1333 (Adams).) Instead, there is a presumption that each member of the firm has imputed knowledge of the confidential information. (Adams, at p. 1333; SpeeDee, supra, 20 Cal.4th at p. 1146.)
“There is, however, a recognized ‘limited exception to this conclusive presumption in the rare instance where the lawyer can show that there was no opportunity for confidential information to be divulged.’ ” (Goldberg v. Warner/Chappell Music, Inc. (2005) 125 Cal.App.4th 752, 760.) This exception does not apply when an attorney who possesses confidential information switches sides in the same case. When that occurs, “vicarious disqualification of the entire firm is compelled as a matter of law” (Henriksen, supra, 11 Cal.App.4th at p. 117), at least for the period in which the attorney in possession of confidential information remains with the firm.
Arguably the risk of Drouet disclosing confidential information to Metzger substantially diminished when Drouet left the firm. We are also mindful that Meza’s interest in selecting her own counsel should be given due consideration. The trial court, however, acted well within its discretion in disqualifying Metzger.
Prior to joining Metzger, Drouet engaged in numerous oral and written communications with counsel for Lucent and the joining defendants, wherein defense counsel revealed substantial confidential and privileged attorney work product. This work product included defense counsel’s impressions, conclusions and opinions about critical issues in the case. For good practical reasons, including saving judicial resources, the trial court expressly ordered that defense counsel could share work product regarding issues of common interest without waiving the work product privilege. Metzger knew of this order before it hired Drouet but chose to hire Drouet anyway. The trial court could have reasonably concluded that allowing Metzger to represent Meza would undermine California’s policy in favor of protecting attorney work product, its own CMC order, and the integrity and fairness of the proceedings.
As discussed below, this order was consistent with the common interest doctrine.
We are not persuaded by Meza’s argument that the disqualification of Metzger will cause her “irreparable harm.” Meza has presented no evidence to support her claim that Metzger is “the only firm in the State of California that regularly litigates non-asbestos interstitial lung disease and asthma cases.” In any case, the trial court could reasonably find that defendants’ interest in protecting attorney work product outweighed Meza’s interest in choosing her counsel.
Meza compares Drouet’s seven-month tenure at Metzger with the “brief and insubstantial” contact between a lawyer and an opposing party in In re Marriage of Zimmerman (1993) 16 Cal.App.4th 556, 565 (Zimmerman) [trial court did not abuse its discretion in denying former wife’s motion to disqualify her former husband’s attorney].) This comparison is unpersuasive for at least two reasons. The first is that Meza is comparing apples with oranges. Meza is comparing the relationship between a lawyer (Drouet) and his new firm (Metzger) in this case with the relationship between a party and an attorney at the opposing party’s law firm in Zimmerman. Second, the attorney-client relationship in Zimmerman consisted of a 20-minute telephone conversation prior to the commencement of litigation. Drouet’s representation of Joe’s Plastics and his relationship with Metzger were far more substantial. Zimmerman therefore does not support Meza’s position.
Meza’s reliance on Adams, supra, 86 Cal.App.4th 1324, is equally misplaced. In Adams, an attorney’s previous law firm advised a manufacturer about the disposal of toxic waste at a particular site. The attorney, Hackard, did not personally advise the manufacturer about that issue or any other issue. Nine years after leaving the firm, Hackard represented plaintiffs against the manufacturer in a case arising from its alleged wrongful disposal of toxic waste at the site. The court held that the “imputed knowledge doctrine,” that is, the doctrine that a lawyer’s knowledge of confidential information is imputed to other attorneys in his or her firm, does not work in reverse. In other words, the firm’s knowledge could not be imputed to Hackard so that he was automatically disqualified from representing plaintiffs suing the manufacturer even after he left the firm. (Id. at p. 1333.) In this case, by contrast, the trial court did not impute the knowledge of the law firm of Waters, McCluskey & Boehle to Drouet. Drouet was actively involved in the representation of Joe’s Plastics and had personal knowledge of confidential work product disclosed by counsel for Lucent and the joining defendants. The facts of Adams, therefore, are distinguishable from the facts of this case.
5. Lucent and the Joining Defendants Had Standing to Seek Metzger’s Disqualification
Metzger argues that Lucent and the joining defendants did not have standing to challenge Metzger’s representation of Meza because they did not have an attorney-client relationship with Drouet. We disagree. Lucent, joining defendants, and their respective counsel clearly had an interest in protecting confidential attorney work product disclosed to Drouet during the time he participated in joint defense efforts.
Citing DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829 (DCH), Meza claims “there is no standing to bring a disqualification motion based upon a conflict of interest absent the existence of an attorney-client relationship.” DCH lends no support of Meza’s position. Indeed, DCH expressly rejected the very argument Meza claims it supports.
In DCH, plaintiffs brought a motion to disqualify an attorney, Kramer, from representing a defendant, Waite, on the ground that Kramer’s wife, Luna, had once served on the board of directors of another defendant, Downey Community Hospital Foundation (foundation). The court held that plaintiffs did not have standing to challenge Kramer’s representation of Waite because “[n]one of the plaintiffs assert the existence of a current or former lawyer-client relationship with Kramer or a confidential relationship between themselves and Luna.” (DCH, supra, 95 Cal.App.4th at p. 833.)
Plaintiffs argued that a nonclient litigant had no standing to bring a motion to disqualify the opposing lawyer. The court, however, stated: “This [argument] overstates the case. Standing arises from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed. . . . [¶] Had the foundation brought the motion to disqualify Kramer, it would have had standing based on the duty of confidentiality Luna owed to it despite the absence of attorney-client relationship between Kramer and the foundation.” (DCH, supra, 95 Cal.App.4th at p. 832, italics added.)
6. A Motion to Disqualify Can Be Granted in Order to Protect Attorney Work Product
Meza argues that “[d]isqualification of an attorney is not proper unless an attorney-client relationship existed between the moving party and the attorney whom it wants to disqualify.” This is simply not true. An attorney may certainly be disqualified in order to protect the attorney-client privilege. It is axiomatic that the attorney-client privilege does not exist unless there is an attorney-client relationship. But protection of the attorney-client privilege is not the only ground for a motion to disqualify an attorney. An attorney may be disqualified for a variety of reasons, including the protection of confidential work product of opposing counsel (See Rico, supra, 42 Cal.4th at p. 819.)
Meza relies heavily on Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719 (Koo). Koo, however, is distinguishable from this case. There, the sole basis for disqualifying the defendant’s attorney was that he allegedly represented members of the plaintiff class. The Court of Appeal held that because there was no attorney-client relationship between the defendant’s attorney and the plaintiff class members, it was an abuse of discretion for the trial court to disqualify the defendant’s attorney. (Id. at pp. 723-724.) Here, by contrast, the confidential information Lucent sought to protect in its motion to disqualify was protected by the attorney work product doctrine, not the attorney-client privilege. Thus, the fact that Drouet did not an attorney-client relationship with Lucent was irrelevant.
7. Lucent and the Joining Defendants Did Not Waive Protection of Confidential Attorney Work Product
The protection offered by the attorney work product doctrine can be waived if work product is disclosed to third parties. (OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, 891 (OXY).) Under the common interest doctrine, however, attorneys representing separate clients with common interests in litigation may share work product with each other without waiving work product protection. There is no waiver of attorney work product when (1) the disclosing attorney has a reasonable expectation that counsel for another party will preserve confidentiality; and (2) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted. (Ibid.)
With respect to the first element of the common interest doctrine, it is clear that defendants reasonably expected that their co-defendants would keep confidential attorney work product disclosed during joint defense meetings and other communications among defense counsel. Indeed, the trial court’s CMC order expressly authorized defendants to disclose such information without fear of waiver. The trial court correctly stated in its order granting Lucent’s motion to disqualify Metzger that the CMC order “recognizes that the defense in this matter would be a collaborative effort.”
The trial court also found that “[t]he evidence … establishes that the defendants had a shared interest and that the communications among counsel, which were made in furtherance of that interest, are in fact confidential.” The court further found that communications among defense counsel were “reasonably necessary” for the accomplishment of the purpose for which defense counsel were retained.
Meza claims that the trial court did not make this finding. The trial court, however, stated: “Under Evidence Code 912(d), a disclosure in confidence of a privileged communication is not a waiver ‘when such disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer . . . was consulted . . . .’ [Citation.] The Court so finds.” (Italics added.)
Substantial evidence supports these findings. The pleadings and declarations filed in support of Lucent’s motion show that the defendants had many common interests. All defendants, for example, had a common interest in Meza’s medical condition, alleged discrepancies in her claims, and her presentation as a witness. Likewise, all defendants had a common interest in anticipating and analyzing Meza’s litigation strategies and in retaining joint defense consultants and experts. According to the declaration of Lucent’s counsel, Scott Tropio, defense counsel, including Drouet, communicated with each other orally and in writing regarding their thoughts and impressions about these issues and other issues of common interest. These communications were protected by the attorney work product privilege and were reasonably necessary for defense counsel to defend their respective clients. Under the common interest doctrine, the attorney work product privilege was not waived.
We conclude that there was substantial evidence to support the trial court’s findings relating to the common interest doctrine in the record on appeal submitted by Meza. In addition, we obtained and reviewed the sealed documents reviewed in camera by the trial court. (See Cal. Rules of Court, rule 8.160(c)(3).) Our review of these sealed records confirm that Drouet was privy to confidential attorney work product shared by defense counsel in furtherance of defendants’ common interests, and that the sharing of such information was reasonably necessary.
Meza argues that Lucent’s “motion to disqualify the Metzger Law Group was based on the premise that California recognizes a ‘joint defense privilege,’ ‘common interest privilege,’ or some other joint or common work product privilege among defense counsel in a multi-defendant civil action . . . . However, . . . no such ‘joint defense privilege,’ ‘common interest privilege,’ or other joint or common work product privilege does not exist or can exist under California law, and therefore no such ‘privilege’ can properly be used to disqualify an attorney.”~(AOB 23)~
This argument is at best frivolous and at worst a willful misrepresentation of Lucent’s position. Lucent expressly stated to the trial court that its motion was not based on a “common interest privilege,” “joint defense privilege,” or some combination thereof. Instead, Lucent argued, and the trial court agreed, that under the common interest doctrine, the attorney work product privilege was not waived in this case. The common interest doctrine does not create a new privilege or extend an existing one. “Rather, the common interest doctrine is more appropriately characterized under California law as a nonwaiver doctrine, analyzed under standard waiver principles applicable to the attorney-client privilege and the work product doctrine.” (OXY, supra, 115 Cal.App.4th at p. 889.)
Meza devotes more than 6 pages of her opening brief to this specious argument.
The trial court went out of its way to state that it could not create evidentiary privileges, such as a common interest privilege or joint defense privilege.
In published opinions, the California courts have somewhat inconsistently referred to attorney work product protection as a “doctrine” (e.g. Rico, supra, 42 Cal.4th at p. 814) and as a “privilege.” (e.g. Dowden, supra, 73 Cal.App.4th at p. 133.) Section 2018.080 refers to the “work product privilege.” Whether attorney work product is protected under a “doctrine” or a “privilege,” it is clearly protected by statute.
Meza argues that the sharing of work product among defense counsel was not reasonably necessary because each defendant could have defended itself without a joint defense effort. “Although such a joint defense effort may have been more efficient for defense counsel,” Meza contends, “this joint defense effort and sharing of work product was not necessary for defense counsel to adequately represent and defend the interests of their respective clients in this action.” Because the sharing of work product among defense counsel was not reasonably necessary, Meza argues, Lucent and the joining defendants waived the attorney work product privilege.
Meza is incorrect. “[W]ork product protection ‘is not waived except by a disclosure wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation.’ ” (OXY, supra, 115 Cal.App.4th at p. 891.) The sharing of work product among defense counsel in this case was not inconsistent, much less wholly inconsistent, with the purpose of the work product doctrine. Indeed, defense counsel shared their confidential ideas about the case with each other in order to better prepare for trial. While the joint defense effort may not have been absolutely necessary, it was reasonably necessary.
Meza argues that each defendant had separate, dissimilar and at times adverse interests to each other. That may be true. But the defendants also indisputably had common interests. With respect to those common interests, defendants were entitled to share attorney work product without fear of waiving the privilege.
In her reply brief, Meza argues that Lucent and the joining defendants are judicially estopped from arguing that they had common interests in the litigation because they previously argued that their interests in this action were too dissimilar to require them to participate in certain joint discovery. Meza did not make this argument to the trial court or in her opening brief. The argument thus has been doubly waived. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 351.) In any case, Meza’s argument is without merit. An essential element of judicial estoppel is that a party is taking two “totally inconsistent” positions. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Lucent’s position that the defendants have significantly different interests requiring some separate written discovery is not totally inconsistent with Lucent’s position that the defendants have many common interests making it reasonably necessary for them to cooperate in a joint defense effort.
Meza speculates that if the trial court had reviewed in camera all communications among defense counsel, it might have found that defendants “waived” the attorney work product privilege. Such a review was required, Meza contends, by OXY. Meza misstates the holding of OXY. There, a party moved to compel the production of nearly 200 documents withheld by the opposing party on the grounds that the documents were protected by the attorney-client privilege and attorney work product doctrine. The Court of Appeal held that the trial court was required to review all of the documents in camera, even though the review might be burdensome. (OXY, supra, 115 Cal.App.4th 874 at pp. 896-897.)
The present case has a very different procedural posture than OXY. The trial court only needed to determine whether or not Drouet was privy to some confidential attorney work product that was reasonably shared among defense counsel in furtherance of common interests. The issue of whether or not each and every written communication among defense counsel was privileged was not before the trial court. The trial court thus was not required to engage in the burdensome and unnecessary process of reviewing all written communications among defense counsel.
DISPOSITION
The order granting Lucent’s motion to disqualify Metzger from representing Meza is affirmed. Costs are awarded to respondents.
We concur: CROSKEY, Acting P. J., ALDRICH, J.