In 2008, shopping mall owner Front Gate brought suit against Fireman's Fund Insurance Company, accusing it of mishandling property damage claims resulting from wind and rain.  During the course of the litigation, Sunil Chand, an employee of Primero, a contractor for Front Gate, contacted Fireman's Fund attorney Melissa Dubbs at the law firm of Carlson Calladine & Peterson LLP and provided her with documents evidencing insurance fraud on Front Gate's behalf.  Fireman's filed a cross-complaint in reliance on these allegations, attaching a declaration from Chand.  Front Gate and Primero tried to block Fireman's from using the documents Chand had copied in the ongoing litigation.

In the ensuing fight, the trial court then ordered Attorney Dubbs to answer five deposition questions related to the drafting of Chand's declaration and a $1000 check that had been issued to him by CCP as reimbursement for his time and travel expenses when meeting with the firm to discuss the case.  The trial court, relying on a referee, took the view that the attorney-client privilege only protects communications between an attorney and a client, not between members of the same law firm or agents of that firm.  The court and referee further concluded that only the qualified, and not absolute, work product privilege applied because Ms. Dubbs' thoughts were not reduced to writing.

The appeals court overturned this order, holding that the attorney-client privilege is not limited to communications directly between client and attorney, but also extends to protect "legal opinions" formed by counsel during representation of the client even if the opinions have not been transmitted to the client.  Next, the court held that the "absolute work product privilege depends not on the existence of a writing but rather on the nature of the claimed privileged matter. "  It cited case law that sets out that the work product doctrine "protects the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case" which would not be possible if only opinions in writing were protected.  In the court's view, each of the deposition questions implicated Attorney Dubbs' legal opinion and the trial court therefore erred in ordering her to answer them.

The opinion, Fireman's Fund Ins. Co. v, Front Gate Plaza, LLC, can be found here.