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An opposing lawyer’s bid to depose Irvine attorney Kippy Wroten won’t be happening. Santa Ana’s Fourth District Court of Appeal ruled Monday (.pdf) that an Orange County judge “ran afoul of clear legal principles” earlier this year when she held that Wroten could be deposed by lawyer John Chavez. In vacating Superior Court Judge Sheila Fell’s order, the Fourth District said Chavez had failed to meet the requirement of “extremely good cause” for taking an adversarial attorney’s deposition. “There are strong policy considerations against deposing an opposing counsel,” Justice David Sills wrote. “The practice runs counter to the adversarial process and to the state’s public policy to ‘prevent attorneys from taking undue advantage of their adversary’s industry and efforts.’” The adversarial system of justice, he added, “presumes that the attorneys for each side oppose one another, not depose one another.” Justices Kathleen O’Leary and Raymond Ikola concurred. In 2003, Chavez, Wilkes & McHugh in Rancho Palos Verdes sued the Carehouse Convalescent Hospital for wrongful death and elder abuse on behalf of the children of Richard Sims, who had been treated at the Santa Ana facility for most of 2002. As part of his investigation, the ruling says Chavez sought information on staffing levels for each day of Sims’ residency. Wroten, a partner at Wroten & Associates who represented the hospital, argued that the information was privileged because it constituted attorney work product compiled by herself, another attorney and a law clerk. A subsequent motion by Chavez to depose Wroten was granted by Judge Fell, who found that independent decisions Wroten made about how to calculate staffing levels placed her in the position of an expert witness and, therefore, deposable. In reversing, the appeal court called any conclusion that Wroten is an expert witness “a fallacy.” “Wroten is an advocate, not an expert witness,” Sills wrote. “Since she (quite understandably) has not been designated as an expert to testify at trial, her deposition is irrelevant, and her opinions are not evidence.” The court also set a small precedent by following a federal court ruling out of Nebraska that said any party claiming the work product privilege has the burden of showing preliminary facts supporting its application. Wroten met that burden in the current case, the Fourth District ruled. Neither Wroten nor Chavez could be reached for comment on Monday. The full text of Carehouse Convalescent Hospital v. Superior Court ( Sims), G037421, will appear in Wednesday’s California Daily Opinion Service.

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