From the Motions to Compel:
..Both Keith Greer and Bradley Mathews agree, "The identities of witnesses are not subject to the attorney/client and work product privileges." (Please see Deposition of Mary Zahau-Loehner at 202: 1-12; Exhibit "A"…
Exhibit A
...attorney/client privilege and I instruct her not to answer.
Q. (By Mr. Matthews) Do you have any source of information that Adam choked Rebecca to death other than what your lawyer has told you?
A. No.
MR. MATTHEWS: Maybe we should depose Mr. Greer.
MR. GREER: That's cool.
Q. (By Mr. Matthews) Do you have any personal information or personal knowledge, rather, that Dina conspired with Adam to choke Rebecca to death?
MR. GREER: Counsel, if I could have just a standing objection, if we're defining personal as anything she has, she received from any other source besides me, then I would not object to that question. Can we define personal as anything she has from a source other than me?
MR. MATTHEWS: Counsel, if a lawyer tells a client something, I don't think there's any reasonable definition of personal knowledge or personal information that would encapsule that. We're talking about someone under -- having perceived something, personal knowledge
Your --
Q. (By Mr. Matthews) What we need from you here today is your present recollection of events that you have personal knowledge of.
MR. GREER: So is that a yes? That excludes anything she heard from me?
Q. (By Mr. Matthews) I'm necessarily not asking by any question that you divulge any communication between your attorney and yourself. Okay?
MR. GREER: You can answer the question. What was the question?
A. Can you ask again, please?
Q. (By Mr. Matthews) Do you have any personal knowledge that Dina conspired with Adam to choke Rebecca to death?
A. No.
MATTHEWS: Okay. Well, Counsel, I'm going to read into the record a quote from a case that says, "The identities of witnesses are not subject to the attorney/client and work product privileges." That is Huffy Corp versus Superior Court 112 Cal App 4th 97, that's a 2003 case. That statement is cited by Huffy by -- it's cited -- cites -- excuse me. That statement cites Aerojet-General Corp versus Transport Indemnity Insurance, 18 Cal App 4th 1996, it's a 1993 case, as well as a few other cases, as well as Weiland Brown, CaliforniaPractice guide civil procedure. I'm
MR. GREER: I agree.
MR. MATTHEWS: On the record, do you have anything to say in response to your obstruction and your frivolous objection based on attorney/client privilege based on the identity of witnesses and underlying facts that are central to your case? Let's have this meet and confer on the record right now.
MR. GREER: I will state on the record that I agree with your authority.
MR. MATTHEWS: Okay.
MR. GREER: It doesn't make the identity of that witness privileged and you can ask us through an interrogatory and I can answer that in an appropriate fashion. If the witness has -- her only source of that information of the identity of that witness is me, that communication is going to be privileged and it's going to be something she's not going to testify to. So you can't use the client to dig in and divulge all the different things that the attorney is working on and then discussing with them. So we can give you that information through interrogatories, which we have throughdocument productions, which we have, but since she only got it from me, I'm going to insert the privilege.
Q. (By Mr. Matthews) Without identifying the name of any individual in particular, have you been advised by any source at all that there is a witness out there that supports your allegation that Adam choked Rebecca to death?
MR. GREER: As phrased, it calls for an answer that would invade the attorney/client privilege and I instruct the witness not to answer. Unless, again, there's a source other than me that that information came from.
Q. (By Mr. Matthews) Do you intend if this case goes to trial to testify at trial that it's your understanding and belief that Adam choked Rebecca to death?
MR. GREER: Objection. Invades attorney/client privilege, attorney work product doctrine. Instruct the witness not to answer.
Q. (By Mr. Matthews) Do you intend to testify at trial if this case goes to trial?
MR. GREER: Again, that's going to invade the attorney/client privilege and work product doctrine. Who is going to be testifying and who is not on behalf of the plaintiff's case would be work product.
Q. (By Mr. Matthews) Would you want to testify at trial if this case goes to trial?
MR. GREER: That you can answer.
A. I am under the advice of Mr. Greer and if Mr. Greer and Mr. Gaston thinks I should testify, then I will testify.
MR. MATTHEWS: Objection.
Non-responsive. Move to strike.
Q. (By Mr. Matthews) Do you want to testify at trial if this case goes to trial?
MR. GREER: Asked and answered. You can answer if you like.
MARY ZAHAU-LOEHNER Yes.
(By Mr. Matthews) Why?
A. Because I would like to tell my side of the story.
Q. What story is that?
A. The story that our attorneys are working on and when we -- when the time comes that I will have the information on that I would want to talk about.
Q. What's the story, though, in general terms that you're referring to?
A. The story that my sister was murdered.
Q. So it's your opinion that your sister was murdered; is that right?
A. Yes.
Q. Okay. What is that opinion based on?
MR. GREER: And, again, to the extent you can testify to that without disclosing any attorney/client privileged information, you can testify to it and particularly you can testify to before we were retained, that privilege would not apply, so -- but then after that, if you would restrict your testimony to things that did not come from me.
A. Because my sister would not have taken her life. She just -- she just was the type ofperson that would just find another way. She would not have taken her life and there was nothing for her to benefit by taking her life on her own. There is -- she thought Max was doing better, so there was not that reason to kill herself. She wanted to come see my parents, that was in the plans, we talked about it just thenight before, and she's the type of person that will go run instead of do something self destructive, so -- and I know that we were raised nobody is perfect and my sister was not perfect, but I know on her core belief that she would not take her life, not after the conversation we had about plans about the future and there were too many other circumstances like her phone call saying that Dina was going to kill her because Max got hurt and she was dead the next day with no good explanation.
Q. (By Mr. Matthews) Do you have any reason to believe that Ms. Dina Shacknai's fingerprints were found anywhere at or near the scene of where Rebecca was found dead?
MR. GREER: If you can answer that question without disclosing anything that you andI have discussed, you can answer that, but I would ask you not to share anything that we've discussed on that issue.
A. I don't have anything to say on that one. I guess I'm not answering according to advice of my attorney.
MR. GREER: So the only information you would have on that topic would be from me?
THE WITNESS: Yes, from Mr. Greer.
Q. (By Mr. Matthews) Do you have any information that Ms. Dina Shacknai's hair was found anywhere at or near the scene where Rebecca was found dead?
A. answer?
MR. GREER: Same objection.
(By Mr. Matthews) You're not going to
Yes, I don't know the information.
MR. GREER: Again, if you see something on the TV, if you talk to somebody else about it, that's all fair game for them. The only thing I'm restricting you from doing, discussing is anything that I have given to you. So if that's your answer, that's your answer, but.
A. Yes, Mr. Greer would be the person to give me details on that.
MR. MATTHEWS: Let's have a meet and confer right now about this right now because, you know, we've all read the first day of the transcript, I'm not going down these roads naively, I know what happened during the first day. I'd like to meet and confer with you now on a very specific question, which is -- can we stop for a second, please?
THE VIDEOGRAPHER: We're going off the record at 10:29 a.m.
(Off the record.)
THE VIDEOGRAPHER: We're back on the record at 10:30 a.m.
MR. MATTHEWS: Just so we're clear about the nature of the objection and what your position is on these questions because it's our position, of course, that if a -- if the question goes to underlying facts or the identity of witnesses or documents and evidence that support allegations that those questions that elicit that type of information and facts is not privileged, that it cannot be made privileged simply by communicating it to a client. So let's give one hypothetical to flush this out. If you knew that there were finger -- Dina's fingerprints were at the scene -- and let me --
Q. (By Mr. Matthews) Do you prefer Mary -- Ms. Zahau or Ms. Loehner?
A. Mary is fine.
MR. MATTHEWS: Mary. Okay. If you knew that someone had discovered Dina's fingerprints at the scene, somewhere near the scene, Mary had no reason to know that, and you guys meet in your office and you say, Hey, Mary, the sheriff's department didn't find it, but this other person did, so we have got Dina's fingerprints, are you telling me that if I now ask her because now she knows because you told her, if she has any information that Dina's fingerprints were found at the scene, is it your position that that communication is privileged and that she is not required to disclose that yes, there is evidence out there that Dina's fingerprints were found at the scene?
MR. GREER: Yeah, the fact that fingerprints were found would not be privilege and through an interrogatory, I would have to respond to that. By asking her -- her now, though, at a deposition, that would disclose,lone, attorney work product because it discloses what I decide and don't decide to share with her, which would be my thought processes and how I'm going to run the case and what I think is relevant, so there would be attorney work product involved there and the communication directly between us would also have the privilege. So the fact the fingerprints exist would not be privileged, it would be disclosed through the appropriate discovery method, which would be an interrogatory or if we had documents relating to it in a request for production of documents.
MR. MATTHEWS: Am I hearing you correctly that you consider this to be a contention interrogatory improperly asked at a deposition, but properly asked in a written interrogatory?
MR. GREER: No, that one just has to do with existence of evidence.
MR. MATTHEWS: Right.
MR. GREER: Right.
MR. MATTHEWS: So--
MR. GREER: I can't -- you can't -- I can't have you go through and ask my client, list all the evidence that your attorney has developed in this case, because by doing that, they're going to then know what I think is important and what I don't think is important, which is my work product and thought process. I can give you all of the those, and even if I haven't told her about some of that evidence, if you ask me for an interrogatory, I'm going to have to give it to her and it's going to state on information and belief, you know, that she believes it to be true because I said it's true in the interrogatory, so that's our position.
MR. MATTHEWS: My -- I'm not sure I understand yet, so I need to keep going. So I ask Mary right now, "Do you have any reason to believe that Dina's fingerprints were found at the scene?" You believe that that's a privileged communication if her only information and upon which she would say potentially yes to that question would be if you told her, you would believe that that's a privileged communication if you said, Yes, Mary, look we found Dina's fingerprints at the scene, it was on -- allover the glass, it was on the doors, on the doorknobs?
MR. GREER: Yeah.
MR. MATTHEWS: You're telling me that --
MR. GREER: The only --
MR. MATTHEWS: it's your position that that's a -- that would be a privileged communication that she would not be required to answer here at the deposition today?
MR. GREER: Yes.
MR. MATTHEWS: Okay.
MR. GREER: Through an interrogatory, I would still have to disclose it, but the way it's phrased, it would show -- that's an obvious one because if I had something like that, I would clearly share it with a client. So it's not as -- as persuasive an example is for me if there were more subtle evidence, for example, that I think may be supportive or not and I decide to share with her or not share with her, her disclosure of that would show work product. Something as obvious as fingerprints, it sounds like it's, you know, an obvious deal that she should know about, but for whatever reason, I may decide not to share it with her too. That would be my work product.
MR. MATTHEWS: Right. And let me follow up on the converse of that. Let's say you never mentioned finger -- Dina's fingerprints to her ever, not ever, and I'm asking her now, "Do you have any reason to believe that Dina's fingerprints were found at the scene," and you guys have never talked about the existence of Dina's fingerprints being found at the scene, there is no communication that would prevent her from being -- saying no?
MR. GREER: Absolutely.
MR. MATTHEWS: You agree with that?
MR. GREER: Yes.
MR. MATTHEWS: Okay. So what you're saying is the mere fact that you're objecting and asserting the objection and instructing her not to answer is impliedly saying that yes, you told her that Dina's finger prints were found at the scene?
MR. GREER: If we're excluding if you're excluding -- I was presuming that your question said excluding anything from your attorney. If it's -- if you're asking in a way that would ask whether her attorney's information was included, that would be privileged, so if I misunderstood your question. If it's worded in a way that would call for addressing acommunication from me, I would say it's privileged, but if you asked, "Do you have a source other than your attorney regarding fingerprints at the scene," then that would be -- she would be able to answer it.
MR. MATTHEWS: But if you're the only source of information upon which she believes that Dina's fingerprints were found at the scene, it's your position that that's a privileged communication?
MR. GREER: Uh-huh.
MR. MATTHEWS: Yes?
MR. GREER: The communication itself is privileged. Not the existence of the fingerprints, which I would still have to give to you through interrogatories and documents.
MR. MATTHEWS: Well, tell me about that. Why do you think that it's an improper question at a deposition, yet it's appropriate for a written interrogatory?
MR. GREER: Because if I -- if I -- if I've communicated it to my client, that would mean it's something important to me or maybe not, I'm discussing that piece of evidence with them. What I choose to bring to the client's attention,how I choose to discuss it is my work product. If you just asked for evidence, I just -- I have to lay it all out. My valuation whether it's important enough for me to raise to my client isn't involved, it's just does the evidence exist? Yes, here's all the evidence. If you ask me in a way that says, Hey, did your attorney tell you this, that gives you insight into my work product. You guys, Hey, you know, Mr. Greer thinks it's important enough to discuss with his client, we're putting together a case to defend against here, that's his work product, we can see what he's thinking. So if you can present it in a way -- if I can present it in a way that doesn't show what I'm thinking, do I value the evidence, do I not value the evidence - any --
MR. MATTHEWS: I'm not asking for
MR. GREER: Let me finish.
MR. MATTHEWS: I'm not asking for any qualification.
MR. GREER: You need to let me finish my answer.
MR. MATTHEWS: I'm not asking for any qualification as to the level of scrutiny that you're giving particular evidence. I'm asking if it exists at all, period.
Q. (By Mr. Matthews) Do you know, Mary, whether or not that Dina has there are fingerprints of Dina's found at the scene, yes or no? Do you -- do you believe that they exist?
MR. GREER: You know what, first of all, you didn't let me finish my answer, which was inappropriate and rude, and what I was saying was that when through interrogatories you just ask me for evidence, I give it to you. Whether I think it's important, not important, that's not an issue, you get it, you have a right to it. If you're asking me about things that I've communicated with my client, that is insight into my work product, that's through a privileged communication and therefore, that's why she can't answer it. So if you pending question is through a source other than me, do you have any information about fingerprints, then she can answer, but if you're asking in a way that would bring out communication with me, that would be privileged.
Mary, I'm just going to probably instruct you from now on if you answer any question when it's on the record if it's -- if the only source ofthe information is from me, then you need to respond, "The only source of information is from my attorney," so he can have his record.
Q. (By Mr. Matthews) Prior to speaking to Mr. Greer for the very first time, did you have any reason to believe that Dina's fingerprints were found at or near the scene where Rebecca was found dead?
A. No.
Q. Prior to speaking to Mr. Greer for the first time, did you have any reason to believe that hair was found at the scene near where Rebecca was found dead that were identified forensically as belonging to Dina Shacknai?
A. No.
Q. Prior to speaking to Mr. Greer for the first time, did you have any reason to believe that there was any forensic evidence of any kind or nature whatsoever connecting Dina Shacknai to the scene where Rebecca was found dead?
A. No.
Q.When is the last time you spoke with Carla Anne King?
A. Who is Carla Anne King?
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Wow. I bet the Honorable Judge is going to throw the book at the unscrupulous Zahaus and their slithering lawyer, Greer. What a load of crap!
