If material protected by the attorney-client privilege inadvertently falls into the hands of opposing counsel, and that counsel does not take the affirmative actions outlined in State Compensation Ins. Fund v WPS, Inc. (1999) 70 CA4th 644, 656, that counsel may be disqualified. See McDermott Will & Emery LLP v Superior Court (2017) 10 CA5th 1083, 1119. See §34.22.
When a trustee is asserting the attorney-client privilege, the “client” is the office of the trustee, not a particular trustee. See Fiduciary Trust Int’l v Klein (2017) 9 CA5th 1184, 1195. See §34.11.
The attorney-client privilege did not extend to communications among the attorney, client, and a public relations consultant, because those communications were not reasonably necessary for the legal representation in the lawsuit. Behunin v Superior Court (2017) 9 CA5th 833, 843. See §34.3.
The attorney-client privilege does not categorically protect everything in an attorney’s billing invoice from disclosure, but it does protect the confidentiality of invoices for work in pending and active legal matters. Los Angeles County Bd. of Supervisors v Superior Court (2017) 2 C5th 282, 297. See §34.9.
Legislative changes to Evid C §956 provide that the exception to the attorney-client privilege does not apply to legal services that comply with state or local laws on medicial or adult-use cannabis. Confidential communications provided for the purpose of rendering those services are confidential communications between client and lawyer, as defined in Evid C §952, provided the lawyer also advises the client on conflicts with respect to federal law. See Stats 2017, ch 530, §2 (AB 1159), effective January 1, 2018. See §34.15.
The California Supreme Court applied the U.S. Supreme Court decision in Crawford v Washington (2004) 541 US 36, 59, 124 S Ct 1354, and held that the jury was improperly asked to consider a deceased person’s confession for its truth in violation of the confrontation clause. People v Hopson (2017) 3 C5th 424, 431. See §19.9A.
In David v Hernandez (2017) 13 CA5th 692, 698, the expert’s opinion testimony on whether defendant was under the influence of marijuana at the time of the collision was a matter of speculation and thus properly excluded. See §16.5.
The trial court abused its discretion in refusing to qualify an expert in database management and analysis in ABM Indus. Overtime Cases (2018) 19 CA5th 277, 292. See §20.6.
Introduction of expert testimony in People v Jeffrey G. (2017) 13 CA5th 501 was rendered inadmissible by the California Supreme Court decision in People v Sanchez (2016) 63 C4th 665. See §20.9.
The court in People v Brown (2017) 14 CA5th 320, 332, applied the co-conspirator exception to the hearsay rule to a minor who was protected as a trafficking victim and thus could not be charged. See §19.16.
The court in People v Gallardo (2017) 18 CA5th 51, 70, held that the jailhouse statements defendant made to informants that identified his codefendants as the shooter and the driver of the car from which shots were fired were improperly admitted under the hearsay exception for declarations against penal interest. See §19.18.
Another case has held that forensic reports of blood alcohol test results are admissible in DMV administrative hearings as public employee records under Evid C §1280. See Murphey v Shiomoto (2017) 13 CA5th 1052 in §19.27.
The California Supreme Court in People v Brooks (2017) 3 C5th 1, 37, held that statements that the victim feared the defendant were relevant to the fear element of stalking and thus fell under the hearsay exception for statements of mental or physical state under Evid C §1250. See §19.24.
In People v Rodriguez (2017) 16 CA5th 355, 377, the court found that a computer-generated report of the Global Positioning System (GPS) data generated by an ankle monitor did not consist of statements, and thus did not constitute hearsay. See §19.3.
The court in In re Auto. Antitrust Cases I & II (2016) 1 CA5th 127 found that meeting minutes were a “textbook example” of an adoptive admission; by engaging in the review and revision process, the party clearly manifested belief in the accuracy of the records. See §19.14.
In People v Forrest (2017) 7 CA5th 1074, 1081, the court found that the defendant forfeited his claim of prosecutorial misconduct by failing to object or seek admonition to the jury, and that any prosecutor misstatements of the law were harmless. See §29.7.
A lay witness may recount his impressions and conclusions based on participation as a percipient witness at a meeting. See In re Auto. Antitrust Cases I & II (2016) 1 CA5th 127 in §20.4.
A trial court permitted lay opinion on the appearance of hay bales but properly excluded such testimony on where the bales came from because plaintiff could not show that her opinions on the appearance of hay bales had any rational basis. Osborne v Todd Farm Servs. (2016) 247 CA4th 43. See §20.4.
The psychotherapist-patient privilege does not protect patient records that are subpoenaed by the Medical Board of California as long as the board demonstrates that the subpoena “is supported by a compelling interest and that the information demanded is ‘relevant and material’ to the particular investigation being conducted.” Cross v Superior Court (2017) 11 CA5th 305, 316, quoting Wood v Superior Court (1985) 166 CA3d 1138, 1148. See §37.15A.
Unduly Prejudicial Evidence
In People v Snyder (2016) 1 CA5th 622, defense counsel’s failure to specify at trial which exhibits should and should not have been admitted precluded the trial court from weighing the probative and prejudicial values of the exhibits. As a result, counsel forfeited his argument based on the existence of an evidentiary alternative. See §§31.8, 31.17.
If a party believes that the trial court misunderstands the nature of the theory on the evidence and thus cannot appreciate the potential for undue prejudice in admitting the evidence, that party must alert the trial court to this error in reasoning; the determination of whether the trial court abused its discretion is based on what the court was made aware of at the time it ruled on the motion. People v Fruits (2016) 247 CA4th 188. See §31.16.
Evidence of prior misconduct involving domestic violence was improperly allowed to be used in a way that “was highly inflammatory and was not specifically relevant to the purpose for which the past incident of domestic violence was admitted.” See People v Disa (2016) 1 CA5th 654 in §32.7.
Work Product Doctrine
Materials submitted by the Legislative Counsel to the Labor and Workforce Development Agency on an assembly bill comprised “impressions, conclusions, opinions, or legal research or theories” that are protected by the attorney work product privilege, and the trial court erred in finding waiver of the privilege. See Labor & Workforce Dev. Agency v Superior Court (2018) 19 CA5th 12, 34, in §§35.3, 35.8.
The court in Tucker Ellis LLP v Superior Court (2017) 12 CA5th 1233, 1242, considered whether the “attorney” who holds the work product privilege is the attorney who created the work product or his law firm employer, and held that, under the circumstances presented, the law firm held the privilege. See §35.5.
Legislative changes to CCP §222.5, related to jury selection, were made by Stats 2017, ch 337, §1 (SB 658), effective January 1, 2018. The amendment triggered several changes, including the requirement that parties be provided reasonable time to evaluate the responses to a questionnaire, if utilized, before oral questioning commences. It also authorizes the parties to submit questions to the trial judge before he or she conducts voir dire and authorizes the judge to include these questions if he or she deems them proper. See chap 6.
Legislative changes to CCP §223, related to the examination of prospective jurors, were made by Stats 2017, ch 302, §2 (AB 1541), effective January 1, 2018. The amendment triggered numerous changes, including the requirement that a trial judge must permit counsel for each party to conduct a jury examination that is calculated to discover bias or prejudice with regard to the circumstances of a particular case or the parties before the court, and also that the scope of the examination conducted by counsel must be within reasonable limits prescribed by the trial judge in the judge’s sound discretion. See chap 6.