BOLLES v. SUPERIOR COURT

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Docket Number

Docket No. 29399.

Attorney(S)

COUNSEL Farella, Braun Martel and John S. Martel for Petitioner. No appearance for Respondent. Miller, Groezinger, Pettit Evers and Harold C. Nachtrieb for Real Party in Interest.

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Smart Summary

Factual and Procedural Background

Petitioner John S. Bolles sought a writ of mandate to compel the deposition of Wilmont Nicholson, an expert witness designated by the real party in interest, Barton Development Company. Barton had indicated its intention to call Nicholson as a witness at trial. The trial was impending, creating urgency for the resolution of the discovery dispute concerning Nicholson's deposition.

Legal Issues Presented

Whether the work product privilege applies to an expert witness who the opposing party intends to call at trial.
Whether petitioner demonstrated good cause to depose the expert witness prior to trial.
Whether a peremptory writ of mandate should issue directing the deposition of the expert witness before trial.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 530-532	Work product privilege does not apply to expert witnesses whom a party intends to call at trial.	Applied to reject real party's claim of work product privilege over expert Nicholson since Barton intended to call him as a witness.
Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 6	Good cause is required to depose an expert witness.	Used to establish the standard for permitting expert depositions.
Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 129-131	Good cause standard for expert depositions.	Supported the requirement that good cause must be shown for expert deposition.
Associated Brewers Co. v. Superior Court (1967) 65 Cal.2d 583, 586-587	Good cause showing for discovery must be liberally construed; discovery allowed if necessary for case preparation.	Applied to conclude petitioner met good cause standard for expert deposition.
Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378, 388	Discovery requests should be granted without abuse of adversary rights if information is necessary.	Reinforced liberal construction of good cause in discovery context.

Court's Reasoning and Analysis

The court first determined that the work product privilege did not protect the expert witness Nicholson's deposition because Barton Development Company intended to call him at trial, citing Scotsman Mfg. Co. v. Superior Court. The court then addressed the requirement of "good cause" to depose an expert witness, referencing established precedents (Dow Chemical Co., Grand Lake Drive In) and emphasizing a liberal construction of the good cause standard as articulated in Associated Brewers Co. and Greyhound Corp.. It concluded that petitioner satisfied this standard by demonstrating the necessity of the deposition for case preparation. The court rejected the real party's argument that petitioner must show lack of equal access to the facts underlying the expert's opinion. Due to the impending trial and resulting urgency, the court ordered issuance of a peremptory writ of mandate without an alternative writ, directing the deposition to proceed before trial. The court also denied petitioner’s request to postpone the trial, allowing it to proceed as scheduled.

Holding and Implications

The court granted the peremptory writ of mandate directing the Superior Court to order the deposition of expert witness Wilmont Nicholson prior to trial.

The decision requires the real party in interest to permit the deposition of its expert witness to facilitate fair preparation by petitioner. The trial was allowed to proceed without delay. No new precedent was established; rather, the court applied existing discovery principles to the facts at hand, emphasizing liberal construction of good cause for expert depositions and rejecting an overly restrictive approach to work product privilege in this context.

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JOHN S. BOLLES, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; BARTON DEVELOPMENT COMPANY, Real Party in Interest.

OPINION

THE COURT.

Petitioner John S. Bolles seeks mandate to compel the deposition of Wilmont Nicholson, an expert witness for real party in interest, Barton Development Company. (1) As Barton has stated its intention to call Nicholson as a witness, the work product privilege is inapplicable. ( Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527, 530-532 [ 51 Cal.Rptr. 511].) (2) Although good cause is required to depose an expert witness ( Dow Chemical Co. v. Superior Court (1969) 2 Cal.App.3d 1, 6 [ 82 Cal.Rptr. 288]; Grand Lake Drive In v. Superior Court (1960) 179 Cal.App.2d 122, 129-131 [ 3 Cal.Rptr. 621, 86 A.L.R.2d 129]), we conclude that petitioner satisfied the requirement, and is entitled to the discovery sought. It has been held that where good cause is required, the showing must be liberally construed; the moving party is entitled to discovery upon a showing that the information sought is necessary for the preparation of its case, and the request may be granted without abuse of the rights of the adversary. ( Associated Brewers Co. v. Superior Court (1967) 65 Cal.2d 583, 586-587 [ 55 Cal.Rptr. 772, 422 P.2d 332]; Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 378, 388 [ 15 Cal.Rptr. 90, 364 P.2d 266].) There is no requirement, as real party argues, that the moving party show that it does not have equal access to the facts upon which the expert's opinion is based.

(3) Because of the urgency created by the impending trial, we are directing the issuance of a peremptory writ in the first instance without the issuance of alternative writ. A peremptory writ of mandate will issue directing respondent to order witness Wilmont Nicholson to answer questions propounded by petitioner relating to Nicholson's testimony and factual basis therefor, prior to the time he is called as a witness. Petitioner will pay the witness reasonable fees as determined by the trial court. The petition is denied insofar as it requests that trial be postponed; the trial may begin as scheduled.