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the privilege was not waived by deposition or trial testimony in
the earlier case, and (2) the crime-fraud exception was
inapplicable. After these rulings, the parties stipulated to a
nonsuit judgment in order to permit appeal. The appellate court,
in an unpublished opinion filed on August 24, 1999, affirmed.
Fitzsimon v. Good, Wildman, Hegness & Walley, No. G020125 (Cal.
Ct. App. Aug. 24, 1999).
Discussion
I. Motion in Limine
Respondent’s motion in limine asks the Court to enter an
order in advance of trial ruling that “petitioner Thomas E.
Johnston is not entitled to assert attorney-client privilege to
prevent his former attorney, Thomas O’Keefe, from testifying
about or producing records pertaining to certain confidential
communications made by petitioner during the course of the
representation”. Framed more narrowly, respondent’s request is
principally concerned with notes made by Mr. O’Keefe regarding
the June 28, 1989, meeting with Mr. Johnston and Mr. Spence.
Respondent alleges that these notes are not protected by the
attorney-client privilege on three alternative grounds: (1)
Waiver by petitioners’ having placed the nature of attorney-
client communications at issue through claimed reliance on
counsel’s advice; (2) waiver by Mr. O’Keefe’s having testified
about privileged matters, during proceedings in Superior Court,
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