Thomas E. Johnston and Thomas E. Johnston, Successor in Interest to Shirley L. Johnston, Deceased, et al. - Page 10




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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          in an unpublished opinion filed on August 24, 1999, affirmed.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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