Dentists Ins. Co. v. Yousefian

The central issue, in this case, was the defendant’s claim for business property damages to tenant improvements in his former orthodontics suite. The parties disagreed over the definition of “tenant improvements” that the policy covered. During the litigation, the plaintiff engaged a construction expert to provide an estimate of the defendant’s loss. The expert, Troy Brogdon, separated the damaged property into two categories: building and tenant improvements. The plaintiff contended it was only responsible for the latter category.

The defendant claimed this was a novel argument and argued that the plaintiff’s counsel, Lether Law instructed Brogdon to make the separation into the two categories. Supporting its argument, the defendant cited an email from Brogdon to the defendant’s expert stating that “[w]e were merely tasked by Lether Law with parsing out the work for the repairs into two categories based on the review of Olympus’ documents.”

Discovery dispute. 

The defendant’s second request for production asked for communications between Lether and Brogdon. The plaintiff objected, saying it sought information developed through attorney-client privileged information. “Defendant responds that plaintiff has waived any claimed privilege through the disclosure made by Mr. Brogdon in his email to defendant’s expert witness.” Preliminarily, the court agreed that communications between Lether and Brogdon were privileged. However, that rule was not “absolute.” The 9th Circuit had held that “disclosure of work product to a third party does not waive the protection unless such disclosure is made to an adversary in litigation or ‘has substantially increased the opportunities for potential adversaries to obtain the information.’” Here, Brogdon specifically told the defendant’s expert that the plaintiff’s counsel asked him to segregate the damages. Since disclosure was made to the defendant’s expert, it increased the opportunities for the defendant to obtain the information. The standard for a waiver had been met. The court, however, determined that the waiver applied only to the matters disclosed.

“Defendant contends that the waiver here compels production of (1) ‘all communications to McBride and/or Mr. Brogdon reflecting Lether Law’s instructions’ and (2) ‘all communications between TDIC/Lether Law on the one hand and McBride/Mr. Brogdon, on the other relating to the subject of the McBride Estimate.’” That was too broad, so communications relating only to the subject of separating the two categories of damages were waived, but other communications that are protected were not waived. “Fairness does not require categorical disclosure of communications between Lether Law and Mr. Brogdon.”

Editor’s note: Normally, experienced experts understand this rule and would not disclose such information. However, both counsel and experts should be on guard for these issues and have good communication with each other on what can and cannot be disclosed and to whom.