ROBIN YEAMANS 46333
Law Office of Robin Yeamans
1484 Pollard Rd. #191
Los Gatos CA 95032 
(408) 867-8137 

Attorney for Petitioner 

SUPERIOR COURT OF CALIFORNIA, SANTA CLARA COUNTY

In re the Marriage of:
redact,
		Petitioner,
	and
redact,
		Respondent	)
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)	Case No.: 1-99 FL 085666

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO PRECLUDE DR. JONATHAN GOULD FROM FURTHER PARTICIPATION IN THIS CASE

APJ: Dept 76; Motion: Dept. 22. 
Hearing:  9/11/08  1:30 PM	
 
I.	Procedural Background

In late March of 2008 Petitioner redact learned that Respondent redact’ then-trial counsel, Bradford Baugh, had hired Petitioner’s former paralegal, Chris Gill; and that Ms. Gill --  despite having acquired confidential information from Petitioner and her counsel that is directly material to this case -- was holding herself out as being the Respondent’s paralegal on this very same case.  On April 2, 2008 Petitioner moved to Disqualify Mr. Baugh on the basis of this egregious conflict of interest. In response, Mr. Baugh admitted that he had hired Ms. Gill, and that she used to work for redact, but argued that he should not be disqualified because she: (1) purportedly did not recall what confidences had been given to her by Petitioner, (2) had not imparted any confidences to Mr. Baugh, or (3) had somehow been “screened from the outset” of her employment with his firm.
On April 23, 2008 the trial court rejected these arguments, and issued an order disqualifying both Ms. Gill and Mr. Baugh from working on this case.  The court found that disqualification was mandated under California law because Petitioner had, in fact, shown that Ms. Gill “possesses confidential attorney-client information that is materially related to the proceedings before this Court,” and because Respondent had failed to rebut the “presumption that this confidential information has been used or disclosed in Ms. Gill’s current employment.”  (Exh. A, para. 2-3.)
The order disqualifying Mr. Baugh and Ms. Gill manifests that the trial court believed that an order which coupled this relief with an injunction forbidding Ms. Gill from further communicating with anyone about this case, as well as circumscribing Mr. Baugh’s ability to communicate with successor counsel, would prevent the further dissemination or adverse use of Petitioner’s confidences [Exh. A]; and, in ordinary circumstance, this would likely have been the case.  After all, Mr. Baugh is a sole practitioner, so there was no possibility that he or Ms. Gill could impart confidences to other members of his firm.  Unfortunately, however, several weeks before Petitioner learned of Mr. Baugh’s conflict he embarked upon a course of conduct that both compounded the conflict and complicated the Court’s ability to provide redress for it.
Beginning in or about March of 2008 Mr. Baugh began putting together what has alternately been referred to as his “forensic team,” “trial team,” or, simply, his “team.”  It appears that, in addition to Mr. Baugh himself, there were two members of this “team” with whom Mr. Baugh communicated in confidence for the purpose of assisting him both in preparing for the then-impending trial, and for conducting the trial itself: (1) an out-of-state attorney named Timothy Tippins and (2) an out-of-state psychologist and “trial consultant” named Dr. Jonathan Gould.     
As for Mr. Tippins, shortly before he was disqualified, Mr. Baugh successfully moved to have Mr. Tippins admitted to practice in pro hac vice under Mr. Baugh’s supervision. Mr. Baugh’s disqualification ended that supervision and effectively terminated Mr. Tippins’ pro hac vice status.  As Mr. Tippins had worked closely with Mr. Baugh, meeting him in private at Mr. Baugh’s office, Mr. Tippins was imputedly exposed to any confidential information Mr. Baugh possessed about this case.  Nevertheless, Respondent applied to have Mr. Tippins’ pro hac vice status reinstated under a new supervisor, attorney John Miller.
Petitioner opposed that application, noting that, once Mr. Baugh had been disqualified for possessing Petitioner’s material confidences, it followed that Mr. Tippins -- the second member of Mr. Baugh’s confidential “trial team” -- could not ethically participate in this matter either.  This Court, apparently reasoning that Mr. Tippins had become tainted by his close association with Mr. Baugh, exercised the discretion afforded to it by C.R.C. Rule 9.40(a) by denying Mr. Miller’s pro hac vice application to readmit Mr. Tippins.  In so holding, the Court ruled, inter alia:
[in my opinion] Mr. Tippins should not be allowed to continue as part of the litigation team. And therefore I will not approve Pro Hac Vice status.  

The decision to deny Mr. Tippins pro hac vice status left Dr. Gould as the only member of Respondent’s original confidential trial team triumvirate who has actual or presumed knowledge of Petitioner’s confidences, but who has not yet been formally precluded from participating in this case. Given the court’s stated reasons for denying Mr. Tippins’ second pro hac vice motion, Petitioner initially assumed that Respondent would not persist in seeking to utilize the services of the third member of Mr. Baugh’s confidential trial team either.  It appears, however, that despite the Court’s prior orders, and in spite of Petitioner’s legitimate concerns about the possibility that confidential information she and Mr. Hammon gave to Chris Gill may still be at risk, Respondent intends to have Dr. Gould assist Respondent’s new counsel as a trial consultant.  Petitioner asks that the Court prevent this by issuing a protective order precluding Dr. Gould from further participating in this case.
II.	Statement of Facts Relevant to this Motion

As noted above, Jonathan Gould was retained by the now-disqualified Mr. Baugh to act as his confidential “consultant” in this matter.  In normal circumstances there would be nothing improper or otherwise remarkable about such a retention – attorneys who practice in specialized areas of law often hire non-lawyers to assist them in dealing with technical matters or to advise them about non-legal matters that may be pertinent to the case.  As will be discussed, however, Mr. Baugh’s retention of Dr. Gould is both unusual and very troubling, for three reasons.
First, unlike most non-lawyer consultants, psychologist Gould was not retained by Mr. Baugh to advise him strictly on “psychological” matters, but to perform a host of distinctly legal services in this matter akin to those that would normally be expected to be performed by a paralegal or even a “second chair” associate at a large firm.  Second, while having “confidential consultations” with attorneys does not usually pose any ethical problem for the consultant, in this case the trial counsel who has been disqualified for actual or presumed knowledge of Petitioner’s confidences, and Dr. Gould consulted with confidentially the second attorney on the “trial team”  who has been denied pro hac vice admission.  Third, while one might expect that a trial consultant who had confidentially communicated with two excluded attorneys would be voluntarily removed from the case, it appears that Respondent plans to use Dr. Gould as a consultant in this matter, even though both attorneys he worked and communicated with on a confidential basis have been precluded from having any further involvement in this case.
Dr. Jonathan Gould is one of four principals with a “consortium” known as Child Custody Consultants (“CCC”).  According to that firm’s website, the consortium provides assistance, inter alia, to attorneys.  http://www.child-custody-consultants.com.  When one clicks on the “Services to Attorneys” link at the bottom of the CCC home page, one learns exactly what type of services the consortium provides to attorneys.  http://home.att.net/~david.martindale/CCC/atty_services.html.  For example, 
If our review reveals deficiencies and if litigation support services are desired, we will assist attorneys in preparing for trial by proposing specific questions and general areas of inquiry for use in cross-examination of the evaluator and/or will assist attorneys at trial by listening to testimony and, on the basis of the testimony offered, suggesting questions for cross-examination (emphasis added).

The website further reveals the extent to which legal, or at least “lawyer-like” services may be performed by members of the non-attorney CCC consortium:
Specific questions can be prepared and/or areas of inquiry can be described, enabling the attorney conducting the direct examination to elicit from the friendly expert information that will serve to clarify poorly articulated portions of the advisory report or supplement information that is deficient. 

Petitioner volunteers no opinion as to the extent to which a non-lawyer “consultant” who prepares “specific questions” for attorneys to use at trial – or who sits at counsel’s table at trial listening to testimony and suggests “areas of enquiry” or “questions for cross-examination” -- may be engaged in the Unauthorized Practice of Law in California in violation of the State Bar Act (Bus. & Prof. Code, § 6125); or whether an attorney who relies on non-lawyers to perform such “quasi-legal” functions may run afoul of the ethical rule which proscribes California lawyers from aiding or abetting the unauthorized practice of law (C.R.P.C. Rule 1-300).   Petitioner does note, however, that based upon what is set forth in the “Services to Attorney” section of the CCC website -- as well as Petitioner’s counsel’s perceptions regarding Dr. Gould’s active involvement in this case -- it would appear that his role in this litigation is not altogether unlike that performed by the excluded Mr. Tippins. 
Of course, in the run of the mill case there would be nothing wrong with an attorney either employing a consultant, or resting assured that whatever has been shared between them will never, ever “see the light of day.”  In the present case, however, where the trial attorney with whom the consultant confidentially consulted has been disqualified for actual or presumed knowledge of an opposing party’s confidences – and where the head of the forensic team who regularly works with the consultant and consulted with the consultant on a confidential basis in this case has been precluded from having any further participation in it -- allowing the consultant to remain poses a serious threat of possible further dissemination or adverse use of the former client’s confidences.  
The need for a protective order is especially compelling in this case.  As will be discussed, the relationship between the consultant and disqualified attorneys Baugh and Tippins appears to have been unusually close.  In addition, and perhaps more fundamentally, it appears that confidential consultant Gould, though not an attorney, served in a distinctively quasi-legal capacity, akin to that of a lawyer or paralegal; and, for this reason, the reason for precluding him from participating in the case is essentially the same as the reason why this Court has already precluded attorney Tippins from doing likewise.
It should be noted that the designation “trial team,” which has been used by Mr. Baugh and two of his expert witnesses to refer to the group which included Messrs. Baugh and Tippins, was not a merely honorary title – deposition testimony from the non-confidential experts reflects that disqualified attorney Baugh, disqualified attorney Tippins, and consultant Gould regularly held "team" meetings. Moreover, as consultant Gould, like attorney Tippins, hales from out of state, those meetings necessarily took place at Mr. Baugh’s office, where disqualified paralegal Chris Gill also worked.  Further, unlike the designated experts, Dr. Gould, as a confidential consultant, could not be deposed by Petitioner to enquire into what confidences he may have learned from disqualified attorneys Baugh and Tippins (any more than Messrs. Baugh or Tippins could, themselves, have been deposed for this reason).
To the extent that the non-confidential expert witnesses were present at the “team meetings,’ Petitioner could conceivably have questioned them about what confidences might have been imparted by Mr. Baugh to Dr. Gould.  However, as these witnesses have testified, there were many instances when the non-confidential expert witnesses were purposefully excluded from the “team meetings.”  In other words, Dr. Gould had confidential consultations with attorneys Baugh and Tippins which the forensic experts did not attend and the content of which Petitioner could not discover.  Moreover, the record reflects that even when the forensic experts were present they studiously avoided taking notes (so there is no objective, contemporaneous record of those meeetings).  Dr. Martindale's failure to take notes is particularly noteworthy as he publicly has a strong position in favor of transparency in the forensic context and retained and produced records of all else he did in the case.
III.	Legal Argument
	
A.	The court should use its own power to control its processes to disqualify Dr. Gould.
The power of this Court to disqualify Bradford Baugh was never questioned by Respondent.  As it was not, the Court did not have occasion to point out -- as the California Supreme Court did in People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 86 Cal. Rptr. 2d 816, 980 P.2d 371 -- that a trial court’s “authority to disqualify an attorney derives from the power inherent in every court ‘[t]o control in furtherance of justice, the conduct of its ministerial officers.’” Id. at 1145, citing Code Civ. Proc., § 128, subd. (a)(5).  Petitioner anticipates that Respondent might argue that, because Dr. Gould is not a “ministerial officer” of the Court, SpeeDee Oil – and California’s other vicarious disqualification case authority – have no applicability to him.  But a closer look at the operative statute reflects that this is not the case.
	Code Civ. Proc., § 128, subd. (a)(5) confirms not only the inherent authority of every California court to control the conduct of its ministerial officers, but to control, in further of justice, the conduct of “all other persons in any manner connected with the judicial proceeding before it, in every matter pertaining thereto.” Id.  Dr. Gould having actively participated in depositions, there is no doubt that if Dr. Gould is permitted to participate as a consultant at trial in this matter, he would be a person “connected with the judicial proceeding.”  In other words, just as this Court had the right to preclude the second member of the trial team triumvirate, attorney Timothy Tippins, from performing any further role in this case, so too does it have the power to preclude non-attorney Gould from further performing any confidential, quasi-legal role in it.
B.	In this family law custody case, the facts require the court to presume or conclude that
Attorney Baugh and/or his paralegal Chris Gill shared confidences with Dr. Gould and therefore to disqualify Dr. Gould.

As counsel Mr. Baugh and his paralegal Chris Gill were disqualified on the basis of the presumption of shared confidential information, there was no finding about the specific communication(s) from the paralegal’s former client which were shared with the now-disqualified attorney.  Respondent's pleadings admitted that Chris Gill was the sister of Marianne Gill, attorney Baugh's long-time paralegal.
As to appellate cases, this is an issue of first impression.  The cases about disqualifying experts deal with specific, shared communications---such as a wayward FAX shared by counsel with his expert.  (E.g., Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 171 P.3d 1092, 68 Cal.Rptr.3d 758.)  In those types of cases one is dealing with a specific, known communication.  The closest case on point is . SpeeDee Oil, supra wherein the court applied the presumption to an attorney who was "of counsel" to the firm.  Dr. Gould's relationship to attorney Baugh is tantamount to the attorney who was "of counsel" in Speedee Oil, instead of being analogous to a disclosed forensic expert.
	In the present case the issue is the “consultant” Dr. Gould who was in a very close quasi-attorney relationship to now-disqualified attorney Baugh, and who when he was in this area for this case, worked in the office in which the now-disqualified paralegal Gill` (who is the one who had the client’s confidences) worked.  Alternatively, Dr. Gould was working at his motel (paid for by attorney Baugh), not to mention driving a vehicle rented by attorney Baugh on behalf of respondent herein.
The initial burden is on the moving party in a disqualification analysis to show that the consultant either in fact had confidences of petitioner or was presumed to have received such confidences.  Roush v. Seagate Technology, Inc. (2007) 150 Cal.App.4th 210, 220, 58 Cal.Rptr.3d 275, Justice Premo for the 6th District Court of Appeal held:
In the expert witness cases, the party seeking disqualification has the burden to show that the expert possesses confidential information materially related to the proceedings before the court. The moving party's initial burden does not require the party to disclose the actual information contended to be confidential. “ ‘However, the court should be provided with the nature of the information and its material relationship to the proceeding.’ ” (citing Shadow Traffic Network v. Superior Court of Los Angeles County (1994) 24 Cal.App.4th 1067, 29 Cal.Rptr.2d 693; bold added)
First, there is a major difference between Dr. Gould’s role as a consultant (almost a quasi attorney) using attorney Baugh’s office and the usual expert witness referred to by Justice Premo above.  Dr. Gould’s role as a consultant was more analogous to a role as a co-counsel in Mr. Baugh’s office than to a role as an independent expert witness.
Second, petitioner contends that the burden to show possession of confidences can be met by production of circumstantial evidence of sharing of confidences, or the sharing should be presumed.  The showing in Rico, supra, for example, is a showing of direct evidence where counsel and the experts, in fact, possessed the errant communication.  However, in other cases the obtaining of confidential information has been inferred from circumstances where “confidential information material to the current dispute would normally have been imparted to [the attorney/expert].”  (Brand v. 20th Cent. Ins. Co. (2004) 124 Cal.App.4th 594, 21 Cal.Rptr.3d 380; bold added).
Third, in the present case no specific communication has been identified.  How can a litigant in such a case meet an initial burden of showing that the “consultant” was privy to petitioner’s confidences---when there is no determination of what those confidences shared by attorney Baugh and paralegal Gill were, and former counsel and paralegal were disqualified because of a presumption of shared confidences?  It would not be logical to aver that because a presumption resulted in disqualification of Mr. Baugh and Ms. Gill without the court making a finding regarding specific communications, that should disadvantage petitioner on the issue of the consultant.  The result should be the same if (1) attorney Baugh and paralegal Gill had been disqualified due to Ms. Gill in fact sharing a specific confidential communication of petitioner, and (2) attorney Baugh and Ms. Gill were presumed to have shared unspecified communications by petitioner—possibly much more extensive confidences than the communication resulting in disqualification in Rico, supra.
Also, the decision of which experts to retain and how to divide up the work between them depends on the facts of the case, including each client’s strengths and weaknesses.  The respondent’s expert Dr. Matthew Sullivan testified that team meetings were held with two purposes:  Dividing up the areas to which each expert would testify, and sharing a common literature base.  (Deposition of Matthew Sullivan, pages 25-27)  At the first meeting which lasted 3 hours, experts’ areas of testimony were decided upon, and after a while, according to Dr. Sullivan, attorney Baugh and Dr. Gould left the meeting and adjourned to a private meeting for a “significant part of that time”:

            14    Q    And what was the purpose of the three-hour 
            15    meeting?
            16    A    The meeting was to -- to get some sense of 
            17    the areas of testimony that we would be providing 
            18    and to share some of the literature that -- that 
            19    was relevant to that.  Those areas of testimony.
            20    Q    And that took three hours?
            21    A    Yes.  I might say that I wasn't part of the 
            22    meetings for some substantial amount of that time.
            23    Q    Why was that?
            24    A    Because Mr. Baugh was meeting with the 
            25    consultant in the case for a significant part of  
             1    that time and we were -- the experts were excused 
             2    during those periods of time. (Pages 25-26, Deposition of Matthew J. Sullivan;
                   Bold added)
 It is an unavoidable conclusion that at their private meeting Mr. Baugh and consultant Dr. Gould openly shared information, and in family law the most crucial information is about the clients.  How did they decide in what areas they needed to present expert testimony?  It cannot be contended that such decisions were made without any mention of the clients.  Applying the ruling of Collins v. State of California (2004) 121 Cal.App.4th 1112, 1124, 18 Cal.Rptr.3d 112 to the present case, “Having become privy to an opposing [party’s confidences], there is no way the offending attorney could separate that knowledge from his or her preparation of the case.”  As further stated in Shadow Traffic, supra:  

Even assuming that [Shadow’s lawyer] did not expressly ask Thompson [the expert who had contact with each side] about the contents of his discussion with [the other party’s counsel] and that Thompson did not explicitly disclose the information to [Shadow’s attorney, that attorney] could still obtain the benefit of the information because the data, consciously or unconsciously, could shape or affect the analysis and advice Thompson rendered to Shadow.
	(24 Cal.App.4th at 1086; bold added)
Just as it was concluded that the offending expert in Shadow Traffic could have “consciously or unconsciously” disclosed the adversary’s work product, in the same way attorney Baugh could have consciously or unconsciously disclosed petitioner’s confidences to consultant Dr. Gould.   As stated above, “there is no way the offending attorney could separate that knowledge from his or her preparation of the case.”  True as that might be in a case involving an expert CPA, it is even more applicable in this family law case.  The circumstantial evidence of sharing in this case that either it should be found as a fact that Dr. Gould was privy to petitioner’s confidences through the employing attorney, or such knowledge should be presumed.
	Some cases involving attorneys have refused to apply a conclusive presumption of sharing between attorneys when the attorneys are not partners, located in the same office or even within a large firm not having contact with the client.  E.g., Adams v. Aerojet-General Corp. (2001) 86 Cal.App.4th 1324, 104 Cal. Rptr.2dd 116.  The Adams court looked at issues involving "mega" firms that are a very far cry from the sole practitioner offices involved in this case when attorney Baugh was disqualified:

Disqualification based on a conclusive presumption of imputed knowledge derived from a lawyer's past association with a law firm is out of touch with the present day practice of law. Gone are the days when attorneys (like star athletes) typically stay with one organization throughout their entire careers. Partners with one law firm may join a competing firm or splinter off and form their own rival firm; former defense lawyers may become the plaintiffs' specialists and vice versa; law firms (like marriages) dissolve, often acrimoniously, its members striking off on their own, and taking divergent paths. We have seen the dawn of the era of the “mega-firm.” Large law firms (like banks) are becoming ever larger, opening branch offices nationwide or internationally, and merging with other large firms. Individual attorneys today can work for a law firm and not even know, let alone have contact with, members of the same firm working in a different department of the same firm across the hall or a different branch across the globe. (Bold added.)

While the mega-firm may have arrived in other areas, often in family law, and specifically in attorney Baugh's situation, the offices in this case have been those of sole practitioners.  Policy based on the mega firm cannot mechanically be applied to the facts of attorney Baugh's mini (as opposed to mega) firm.  Those cases do not apply to the facts in the present case.  The home location of Dr. Jonathan Gould is in North Carolina.  (See Ex.  H to Attorney Yeamans' declaration.)  But when he was participating in the present case—far from North Carolina---he functioned in the office of attorney Baugh or in a motel room rented by attorney Baugh.    (See declaration of Robin Yeamans.)  Depositions were conducted at the office of Mr. Baugh as stated in the declarations of attorneys Yeamans and Hammon.  Dr. Sullivan testified that two 3-hour forensic team meetings, both attended by Dr. Gould, were held at Mr. Baugh’s office (Deposition of Matthew Sullivan, pages 25-27).  The motel room occupied by Dr. Gould was rented/reimbursed by respondent’s counsel for an entire week. (See records to be subpoenaed.)  There is no other indication that Dr. Gould had any case pending or other reason than the present case, causing him to stay in Santa Clara County for an entire week.  If attorney Baugh and/or Dr. Gould contends that Dr. Gould was doing something other than working on the present case when he stayed here a week, they should submit copies of their bills.
	Respondent has been noticed to produce notes taken at the forensic team meetings which were attended by attorneys Baugh and Tippins, Dr. Gould, and the forensic experts.  It appears that the three forensic experts purposely refrained from taking notes, and Dr. Gould has the only copy of those notes The notes are unquestionably relevant to the issue of whether the three forensic experts should be disqualified, and they relate to those experts having a discussion in the presence of attorneys Baugh and Tippins.  Dr. Gould's function in the case is precisely the issue here---is his role more analogous to the cases regarding disqualification of an attorney's entire firm in a small office, or is it more analogous to the cases regarding forensic experts (who products are discoverable).  If he was the attorney's alter ego consultant, the attorney being disqualified, he too should be disqualified.  If he was really a part of the forensic team, his notes should be discoverable.  Which role he occupied is precisely the issue before the court.
	It is anticipated that respondent could contend that the communications between Mr. Baugh, Ms. Gill and the forensic experts are within the attorney work product doctrine pursuant to CCP sec. 2018.010 et seq.  If Dr. Gould’s information is within the attorney work product privilege of a now-disqualified attorney, isn’t keeping the consultant on the case equivalent to keeping the now-disqualified attorney on the case?  They worked closely together, formed a strategy together, assembled a forensic team together and took depositions literally side by side.  If the consultant remains in the case, virtually nothing is accomplished by removing the attorney and paralegal, as the consultant amounts to the attorney’s alter ego in the case.
IV.	No Countervailing Factors Weigh Against Granting this Motion

	Petitioner does not know for sure what arguments Respondent will make in an effort to keep Mr. Gould involved in this case in a confidential consultant capacity.  However, if it is true that the past is prologue, it can be anticipated from positions Respondent has taken vis a vis prior Motions that he will contend that: (1) the Motion is tactical, (2) the Motion is dilatory, and (3) granting the Motion would somehow prejudice his case.  As this Court found to be the case with respect to both the prior Motion to Disqualify Mr. Baugh and Petitioner’s Opposition to Respondent’s Application to Admit Mr. Tippins pro hac vice, none of these claims hold any water.
	As for the “tactic” claim, Petitioner certainly understands why Respondent would want to try to “poison the well” with the Court by alleging, on a conclusory basis, that Petitoiner’s motives are impure, but they are not.  As Petitioner and counsel attests in the declaration which supports this Motion, her goal – and her only goal – is to attempt to insure that confidential and privileged information she imparted to Chris Gill during the course of an attorney-client relationship will not come back to haunt in this case.  
	As for the “dilatory” claim, Petitioner has been exceedingly prompt to object in every circumstance in which a possible compromise of her confidential information was suspect.  With respect to Mr. Baugh, Petitioner moved to disqualify him within a week of learning of the conflict situation and his unwillingness to voluntarily withdraw.  With respect to Mr. Tippins, Petitioner refused to stipulate to his original pro hac vice admission on the grounds that he would be tainted by exposure to Mr. Baugh, then immediately opposed his second attempt to be admitted pro hac vice on the grounds that he had become conflicted by virtue of his association with Mr. Baugh.
	As for Dr. Gould, in advance of the previously scheduled trial date (May 5, 2008) Petitioner prepared a Motion in Limine in which she argued, inter alia, that once Mr. Baugh ended up disqualified, his entire team should be disqualified.  That Motion was never heard because the trial was continued, at Respondent’s request; however, Respondent can hardly claim that Petitioner did not provide adequate notice that she objected to Dr. Gould’s further participation in this case.
	Finally, with respect to Respondent’s anticipated “prejudice” claim, the short answer is that if Respondent was unable to adduce any prejudice that would inure to him if Timothy Tippins was precluded from working on this case, it is difficult to see how being deprived of the services of a non-attorney consultant would cause him any prejudice – much less the “extreme prejudice” required by California case precedents.  See, e.g., River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1309, 234 Cal. Rptr. 33.
V.	Discovery and Cross-Examination Must be Permitted if Dr. Gould and/or disqualified attorney Baugh and/or disqualified paralegal Chris Gill file declarations.
If Dr. Gould signs a declaration (claiming lack of receipt of confidential information), this would waive any claim on his part that he is only a confidential consultant, so that regarding these issues petitioner can take his deposition.
If petitioner is not allowed to do discovery regarding Dr. Gould, due to the attorney work product privilege (CCP sec. 2018.010 et seq.), that alone would show that he was so close to the attorney that disqualification of the attorney and his paralegal necessitate Dr. Gould's removal.
If Dr. Gould’s information is not privileged and he does a declaration, petitioner requests the opportunity to take a deposition of him to examine the nature of his contact with the former attorney and former paralegal, including a continuance if that is necessary to do discovery.  If Dr. Gould's declaration was admitted, and petitioner could not do discovery, she would find herself bound by his self-serving declaration which cannot be challenged or pierced.  The inability to pierce into what is happening in the office of an attorney sought to be disqualified is the reason for the presumption of shared confidences in the first place, and it should apply to Dr. Gould as it applied to former counsel.

VI.	Conclusion

	Dr. Jonathan Gould was one of three people who met in confidence to prepare this case for trial on behalf of Respondent.  The other two members of the confidential component of Respondent’s “trial team” – lead trial attorney Bradford Baugh and out-of-state attorney Timothy Tippins – have been ordered by this Court to have no further involvement in this case.  In Mr. Baugh’s case, the basis for the Court’s order was based upon its concern about his actual or presumed receipt of Petitioner’s confidences from Ms. Gill.  In Mr. Tippins case, preclusion had to be ordered out of a justified concern that, because Mr. Tippins and the disqualified Mr. Baugh worked together in private, and out of the same office, Mr. Tippins either actually or presumptively came into possession of the same confidential and privileged information.  
	As the foregoing Statement of Facts reflects, Dr. Gould has performed a role analogous to that performed by Mr. Tippins; and, like Mr. Tippins, met in confidence with the now-disqualified Mr. Baugh.  Under California law, the fact that Dr. Gould is not an attorney, does not deprive the Court of the authority to take whatever steps are necessary to insure that Petitioner’s confidences remain “inviolate.”  Therefore, Petitioner respectfully requests that, consistently with its prior orders in this case, this Court issue a protective order precluding Dr. Gould from acting as a trial consultant in this case.  
Dated:  August 7, 2008

                          	  ________________________________
		 	  ROBIN YEAMANS
                            	  Attorney for Petitioner