## Facts

- Alfredo Ruiz Hernandez sued the County of Los Angeles for medical malpractice.
- In expert discovery under former California Code of Civil Procedure § 2034, the County designated Dr. M. Anthony Verity, a board-certified pathologist, as an expert.
- Dr. Verity had been retained by the County as a consulting expert and prepared opinions and a report for County counsel in anticipation of litigation.
- Hernandez did not designate a pathologist but noticed Dr. Verity’s deposition.
- Before any deposition occurred, the County served an amendment withdrawing Dr. Verity as a designated expert while continuing to use him as a trial consultant.
- Hernandez’s counsel contacted Dr. Verity directly and met with him; during that meeting Dr. Verity discussed opinions and a report prepared for the County.
- Hernandez then designated Dr. Verity as his own expert.
- The County moved for a protective order barring Dr. Verity’s deposition and use by Hernandez and sought disqualification of Hernandez’s counsel based on exposure to the County’s work product and confidential expert communications.
- The trial court denied the motion and ordered the County to pay $750 in fees/costs; the County sought writ relief.

## Issues

1. Whether a party may withdraw a previously designated expert before deposition, continue to retain the expert as a consultant, and thereby prevent the opposing party from deposing or using that expert.
2. Whether opposing counsel’s ex parte communications with the withdrawing party’s retained consultant, resulting in acquisition of confidential information and attorney work product, require counsel’s disqualification.

## Decision

- The Court of Appeal granted writ relief and directed the trial court to vacate its order denying the County’s motion and awarding fees.
- The court held the County could withdraw Dr. Verity before deposition, keep him as a consulting expert, and bar Hernandez from deposing or designating him.
- The court ordered a protective order prohibiting Hernandez from deposing or using Dr. Verity as an expert.
- The court ordered disqualification of Hernandez’s counsel due to improper acquisition of the County’s confidential information and attorney work product through ex parte communications.
- The court directed the trial court to set aside the $750 fee award.

## Legal Principles

- Under the statutory expert-discovery scheme, a party may withdraw an expert designation before the expert is deposed and revert the expert to consulting status, cutting off the opponent’s ability to depose or retain that expert.
- A retained consulting expert is a repository of the retaining party’s confidential communications and attorney work product; allowing the opponent to use that expert risks disclosure of counsel’s mental impressions, theories, and litigation strategy.
- Ex parte contact by adverse counsel with an opponent’s retained consultant (including a formerly designated expert withdrawn before deposition) is improper when it risks obtaining privileged or work-product information.
- When an attorney obtains an adversary’s protected information through such contact and the resulting prejudice cannot be effectively cured, disqualification is an appropriate remedy.

## Conclusion

The court held that withdrawing an expert before deposition restores the expert’s protected consulting role and prevents the opposing party from deposing or using the expert, and it required disqualification where opposing counsel’s ex parte communications with that consultant exposed counsel to the retaining party’s confidential work product.


County of Los Angeles v. Superior Court, 222 Cal. App. 3d 647, 271 Cal. Rptr. 698 (Ct. App. 1990)