In In re Grand Jury Subpoena (9th Cir 2016) 828 F3d 1083, the Ninth Circuit held that a state official in his personal capacity may not claim the attorney-client privilege as to communications with state attorneys on issues of potential conflicts of interest; only the state may claim that privilege. See §34.11.
In the first case to consider the exception to the attorney-client privilege for communications relevant to an issue between parties claiming through the same deceased client under Evid C §957, the court held that the exception does not apply in a "hybrid situation" involving claims both through and against the deceased client and his estate. DP Pham LLC v Cheadle (2016) 246 CA4th 653. The court in DP Pham also found that the trial court failed to follow the rule that courts may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. See §§34.18, 34.23.
The court in Catalina Island Yacht Club v Superior Court (2015) 242 CA4th 1116 held that a court confronted with a privilege log that does not include the necessary information to rule on attorney-client and work product objections may order the responding party to provide a further privilege log but it may not order the privileges waived based on serving a deficient privilege log. See §33.9, 34.22A.
The California Supreme Court applied the U.S. Supreme Court decision in Crawford v Washington (2004) 541 US 36, 59, 124 S Ct 1354, to determine that a police report and STEP notice were testimonial. People v Sanchez (2016) 63 C4th 665. See §19.9B.
The California Supreme Court has held that, although an expert may rely on hearsay in forming an opinion, an expert cannot "relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception." People v Sanchez (2016) 63 C4th 665. The court explained that a limiting instruction requiring the jury not to consider such testimony for its truth would not avoid hearsay problems, because the jury must consider expert basis testimony for its truth to evaluate the opinion. See §20.9.
Hearsay Exceptions; Admissions
The California Supreme Court in People v Clark (2016) 63 C4th 522 held that defendant forfeited his claim that insufficient evidence was presented to support a prima facie case of the existence of a conspiracy under the exception to the hearsay rule for the admissions of co-conspirators in Evid §1223 because he failed to raise it at trial. See §19.16.
In Transbay Auto Serv. v Chevron USA (9th Cir 2015) 807 F3d 1113, the court held that a party acting in conformity with the contents of a document constitutes adoption of the statements in that document even if the party never reviewed them. See §19.14.
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 Bigler-Engler v Breg, Inc. (2016) 4 CA5th 1031, plaintiff's counsel committed several acts that constituted misconduct but some were forfeited for failure to timely object and the others were not sufficiently egregious to cause prejudice. See §§29.9, 29.11.
A lay witness may recount his impressions and conclusions based on participation in meeting as a percipient witness. 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.
As part of its investigation of defendant psychiatrist, the Medical Board sought patient records. The court found that those records were protected by the psychotherapist-patient privilege and the exception for breach of psychotherapist-patient duty was inapplicable because the patient did not complain of her treatment by defendant and expressly asserted the privilege. Kirchmeyer v Phillips (2016) 245 CA4th 1394. See §37.12.
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
The court in Catalina Island Yacht Club v Superior Court (2015) 242 CA4th 1116 held that a court confronted with a privilege log that does not include the necessary information to rule on attorney-client and work product objections may order the responding party to provide a further privilege log but it may not order the privileges waived based on serving of a deficient privilege log. See §35.8.