Filed 9/21/26 Playboy Enterprises Intl. v. Advanced Vita Supplements Corp. CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
PLAYBOY ENTERPRISES B350504
INTERNATIONAL, INC., et al.,
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 21STCV07609)
v.
ADVANCED VITA SUPPLEMENTS
CORPORATION, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, James I. Montgomery, Judge. Reversed and
remanded.
Manteau Downes, Patrick N. Downes, Ben Machida; Bowse
Davis Huffine Chung & Hull and Michael A. Bowse for
Defendants and Appellants.
Frost, Christopher Frost, Kevin S. Dicker and
Justin M. Goldstein for Plaintiffs and Respondents.
____________________________
Defendants Advanced Vita Supplements Corporation,
AVS Products, LLC, and Sasha Matloob (collectively, AVS)
appeal from the denial of their motion to disqualify counsel for
plaintiffs Playboy Enterprises International, Inc. and Products
Licensing LLC (collectively Playboy), as well as two expert
witnesses designated by Playboy.
AVS claimed the experts had acquired AVS’s confidential
information when AVS met with the experts to consider retaining
them, and the experts had passed that information onto Playboy’s
counsel. After sustaining Playboy’s hearsay and other objections
to much of the evidence offered by AVS, the trial court found AVS
had failed to demonstrate AVS had a reasonable expectation of
confidentiality when it met with the experts, or that the experts
acquired any confidential information in those meetings.
We hold the trial court abused its discretion in sustaining
hearsay objections to AVS’s declarations describing what was
discussed in AVS’s meetings with the experts. Those descriptions
were not offered to prove the truth of statements made in the
meetings, but simply to establish that purportedly confidential
matters were discussed. We further hold there was no basis to
exclude an unsigned retainer agreement drafted by the experts or
AVS’s counsel’s averments regarding his past experiences
meeting with experts.
We reject, however, AVS’s arguments that the trial court
misapplied the framework for assessing disqualification motions
based on an expert’s purported acquisition of confidential
information, or that case law compels certain findings as a
matter of law.
We reverse and remand for reconsideration in light of this
opinion.
2
BACKGROUND
1. Motion to disqualify
In May 2021, Playboy sued AVS for an alleged breach of a
license agreement. In August 2021, defendant AVS Products,
LLC filed a cross-complaint alleging interference with its
marketing efforts and its rights under the license agreement.
Playboy later added as defendants Todd Kay, Gerard Guez, and
two entities purportedly their alter egos, alleging these additional
defendants participated in a scheme with AVS to exploit
Playboy’s license. Kay, Guez, and their allegedly related entities
are not party to this appeal.
In July 2025, AVS moved to disqualify the law firm
representing Playboy, Frost LLP, as well as two expert witnesses
designated by Playboy, Weston Anson and Jeff Anderson. AVS
contended AVS previously had communicated with Anson and
Anderson in connection with possibly retaining them, and in
those communications AVS had conveyed confidential
information.
In support of the disqualification motion, AVS filed
declarations from two of its attorneys, Patrick Downes and
Ben Machida, and also a declaration from defendant Matloob,
chief executive officer of Advanced Vita Supplements
Corporation.
a. Downes’ declaration
Downes averred that on or about June 1, 2022, AVS
retained a firm called the Roundtable Group to assist in finding
expert witnesses on licensing and damages. Downes stated, “My
understanding is that the Roundtable Group only provides
potential experts who will treat information that is obtained
3
during the interview process as confidential, and protect such
information from disclosure.” Downes averred, “On information
and belief, the experts at issue here signed the Roundtable
Group’s form agreement,” which contained a confidentiality
clause. Downes attached to his declaration an unsigned copy of
the Roundtable Group’s form agreement.
Downes’ averred that on June 6, 2022, the Roundtable
Group recommended Anson and Anderson as potential experts.
Anson and Anderson worked for a company called Consor.
Downes stated that on June 8, 2022, he participated in a
42-minute telephone conference with Anson, Anderson, and
another Consor employee, Evan Loker. Also on the call were
AVS’s corporate counsel, Christian Trunnel; an AVS employee,
Priscilla Khalil; and defendants Matloob and Kay.
Downes further averred, “It is my practice when
interviewing experts to state at the start of the call that the
information discussed during the interview is confidential,” and
Downes “ha[d] no reason to think this statement was not made
on June 8, 2022.” Downes stated, “My clients and I spoke
candidly with Consor about the progress of the litigation, the
strengths and weaknesses of [Playboy’s] claims and defenses, the
damages that I believed would be recoverable in the action, our
views and understandings regarding AVS’[s] rights under the
pertinent license agreement as amended, and my prognosis for
the rem[a]inder of the case.”
Downes’ declaration listed specific topics discussed during
the call, including the scope of the license agreement; Playboy’s
obligations under the agreement and how AVS believed Playboy
had breached those obligations; Consor’s view on standard
processes for approving packaging and marketing materials; facts
4
and evidence concerning Playboy’s termination of the license
agreement; assessment of damages from Playboy’s breach; AVS’s
theories of damages, including Downes’ “personal work product”
concerning a potential measure of damages never disclosed to
Playboy; AVS’s views on a potential joint venture agreement
negotiated between Playboy and AVS; Playboy’s posttermination
activities and their use of AVS’s information and materials;
Consor’s initial views about the lawsuit; how Consor’s opinions
might be used to prepare for trial; and details on the testimony
for which AVS intended to call expert witnesses. Downes averred
Matloob and Kay provided detailed information about the facts of
the case and the financial condition and operations of their
businesses.
Downes averred Consor “made clear” during the call that
Consor would not provide expert witnesses unless Consor “fully
believed in the Defendants’ claims and positions,” and therefore
requested additional documents and evidence. Downes stated,
“This request was made so that [Consor] could ascertain the
veracity of Defendants’ claims, but also meant that Defendants
needed to provide details regarding their strategy to convince
Consor of the veracity of their claims.” Downes provided the
Roundtable Group with additional documents for Consor’s
review, including “an additional piece of confidential
information.” The parties to the first call then held a second 18-
minute call, in which the defendants and their counsel “candidly
discussed their trial strategy,” the “strengths and weaknesses” of
their case, and how Consor’s experts “could fit in with
Defendants’ trial strategy.”
Downes added that on July 5, 2022, Consor gave AVS a
draft retention agreement providing, inter alia, that Consor
5
would maintain the confidentiality of “any proprietary
information provided to and retained by Consor.” (Some
capitalization omitted.) Downes attached an unsigned copy of the
draft retention agreement to his declaration. AVS ultimately
decided not to retain Consor.
Downes averred that on June 23, 2025, Playboy served an
expert designation identifying Anson and Anderson as expert
witnesses. AVS informed Playboy those experts had a conflict.
Downes averred the parties met and conferred, and Playboy
stated that according to Consor, Consor had received no
confidential information, and participated in only a single
telephone call with Downes and Matloob.
Downes concluded his declaration, “I am unable to recall
any substantive interview of an expert witness in my career,
much less two at the same time, where confidential information
was not shared with the expert so that they could evaluate the
case and have a substantive conversation about the case and
their testimony, or where the parties did not agree to exchange
confidential information. Two phone calls that total an hour
obviously would involve confidential information, particularly
since Consor had the pertinent pleadings and was asking detailed
questions.”
b. Machida’s declaration
Machida, the other attorney declarant, averred he drafted a
summary of the case to provide to potential experts, and sent it to
the Roundtable Group. Machida stated the summary contained
confidential information. Machida’s “understanding was that
this summary would be shared with experts . . . .”
6
c. Matloob’s declaration
Defendant Matloob averred he participated in telephone
conferences with Anson and Anderson on June 8 and 20, 2022, at
which he and Kay “provided detailed information regarding our
understanding of the facts underlying the claims in this action as
well as regarding the financial condition and operations of
AVS’[s] nutraceutical and pharmaceutical business.”
2. Playboy’s opposition and motion for sanctions
Playboy opposed the disqualification motion, arguing AVS
did not provide, nor did Consor use, any confidential information,
and there was no expectation of confidentiality in the telephone
conferences between Consor and AVS. Playboy also moved for
monetary sanctions against AVS, arguing the disqualification
motion was frivolous.
In support, Playboy filed, inter alia, declarations from
Anson, Anderson, and Loker, the three Consor participants in the
calls with AVS. Anderson averred he never received the case
summary prepared by Machida or the Roundtable Group’s form
agreement, and the Roundtable Group’s initial e-mail to Consor
contained no confidential information or confidentiality
designation.
Anderson averred the first telephone conference with AVS
lasted approximately 30 minutes, and “was very introductory,
merely focusing on logistics, availability, and a high-level
overview of the AVS [a]ction.” He asserted, “[N]o confidential or
privileged information was provided to Consor,” and “[n]o one on
the call specifically stated a requirement or expectation that all
or any part of the call was to be considered confidential or
privileged.” Anderson stated Downes “certainly did not discuss
7
all the topics identified” in Downes’s declaration, and denied
Downes had said anything about keeping confidential the
matters that were discussed.
Anderson averred the second call with AVS “lasted less
than 20 minutes,” and involved discussions of Consor providing a
proposal and range of hours for their engagement. Again, “no
confidential or privileged information was provided to me or to
any other Consor team member,” “[n]o confidential strategy was
discussed,” and “[n]o one on the call specifically stated a
requirement or expectation that all or any part of the call was to
be considered confidential or privileged.” Anderson denied
Downes’ assertion that the call participants discussed “ ‘Consor’s
potential expert opinions and how they could fit in with
Defendants’ trial strategy.’ ”
Anderson averred Consor provided its draft retention
agreement to the Roundtable Group, but “[i]t was never finalized
or signed.” He noted that even if it had been signed, “no
proprietary information was provided to Consor by the Round
Table/AVS Individuals.” Anderson asserted, “Consor’s custom
and practice is to never discuss or obtain confidential information
before a non-disclosure agreement or confidentiality agreement
has been executed. Among the reasons for this is to avoid being
blocked from a potential engagement by a party that does not
engage us.”
Anderson stated that Playboy’s counsel contacted Consor in
April 2025 about a possible retention, and in a May 2025 call,
Anderson informed Playboy’s counsel about the communications
with AVS three years earlier. Anderson and Anson told Playboy’s
counsel nothing confidential or privileged was provided by, or
discussed with AVS during those communications.
8
Anson and Loker similarly averred they never received
Machida’s case summary or the Roundtable Group’s form
agreement. Their descriptions of the two telephone conferences
with AVS matched Anderson’s. They corroborated Anderson’s
averment that Consor’s draft engagement agreement was never
finalized or signed, and that Consor’s custom and practice was
never to discuss or receive confidential information without an
executed confidentiality agreement in place.
Playboy also filed evidentiary objections to AVS’s
declarations. Playboy raised hearsay objections to the
paragraphs of Downes’ and Matloob’s declarations describing
what was discussed during the two calls between AVS and
Consor, noting that many of the paragraphs in Downes’
declaration “do[ ] not differentiate between what [Downes] claims
to have said and what he claims was said by others.” Playboy
objected to Consor’s draft retention agreement attached to
Downes’ declaration on relevance and secondary evidence
grounds. Playboy further objected on foundation and relevance
grounds to Downes’ averment that in his career he had never
participated in an expert witness interview in which confidential
information was not disclosed.1
1 We summarize only the objections challenged on appeal.
The challenged hearsay objections are numbered 6–20, 23–24,
and 34 in Playboy’s filed evidentiary objections. The objection to
the draft retention agreement is numbered 25, and the objection
to Downes’ statement about other expert interviews in which he
participated is numbered 30.
9
3. AVS’s reply
AVS in reply provided another declaration from Matloob
corroborating that at the beginning of the June 8, 2022
conferences, Downes instructed that anything discussed would
remain confidential.
AVS responded to Playboy’s evidentiary objections. AVS
argued, inter alia, that Downes’ and Matloob’s recounting of what
was said during the calls with Consor was not hearsay because it
was not offered for the truth of what was said, but merely to
establish what information was disclosed to Consor.
4. Trial court’s ruling
The trial court sustained Playboy’s hearsay and other
evidentiary objections summarized ante, and denied AVS’s
disqualification motion. The trial court’s written order set forth
the evidence presented in AVS’s declarations, including Downes’
and Matloob’s descriptions of the topics discussed in the
telephone conferences between AVS and Consor. Citing
Shadow Traffic Network v. Superior Court (1994) 24 Cal.App.4th
1067 (Shadow Traffic), the court stated the questions before it
were 1) whether a confidential relationship existed between
Consor and AVS; 2) if so, “whether any ‘confidential
communication’ was given to [Consor]”; and 3) if so, whether
Consor “gave that confidential information to the opposing
counsel.”
The trial court first noted Playboy engaged Consor three
years after Consor’s meetings with AVS, which “weigh[ed]
against finding that any material disclosures were made when
the passage of time may make the information discussed ‘stale.’
[Citation.]”
10
The court then considered “the evidence of the actual
disclosures made.” The court noted only two AVS-aligned
witnesses provided declarations, Downes and Matloob, even
though the evidence showed Trunnell, Kay, and Khalil also were
on the calls, nor was there a declaration from a Roundtable
Group representative. The court further noted Matloob’s
declaration “included only a single vague paragraph regarding
what was disclosed” during the calls. The court stated,
“Admittedly, the Downes declaration is more detailed,” but “much
of the declaration is rendered inadmissible by the vague drafting
of the declaration. That is, many of Downes’ representations
pertain to statement[s] Downes and his ‘clients’ made, making
the evidence inadmissible where it is unclear what Dow[n]es
purportedly communicated as opposed to what he contends
someone else disclosed during the meeting.”
The trial court observed Downes’ declaration “is
contradicted by all three Consor team members who participated
in those June 2022 calls,” all of whom “unequivocally represent
that nothing confidential was shared,” and that Consor had a
“practice of not receiving confidential information during any pre-
retention contact.” The court found it “telling” that all three
Consor participants submitted “clear, unequivocal and
admissible” declarations, whereas AVS provided declarations
only from Matloob and Downes. “Defendants’ absence of evidence
further raises an inference that confidential information was not
disclosed.”
The court found no admissible evidence the Roundtable
Group provided Consor with Machida’s confidential case
summary, and found “there is no confidentiality agreement, no
engagement agreement, nor any other writing suggesting
11
Defendants’ communications with Consor would be confidential.”
The court observed the Roundtable Group form agreement was
unsigned, and although Downes averred on information and
belief Consor signed a different copy, “[T]here is no Round Table
declaration supporting this claim.” The court further observed
Consor’s draft engagement agreement was unsigned, and in any
event was not circulated until after the two telephone
conferences.
The court noted Downes’ averment that it was his
“ ‘practice’ ” to caution potential experts that any information
discussed was confidential. The court stated, however, “[T]his
does not affirmatively show that such a representation was made,
especially in light of declarations by Consor’s experts that it was
not.” The court acknowledged the absence of a confidentiality
discussion or agreement was “not determinative of whether
confidential information was in fact disclosed,” but “the absence
of any steps to safeguard information disclosed at these meetings
further raises the inference that confidential information was not
disclosed.”
The court concluded, “Defendants have not met their initial
burden of showing that confidential information was disclosed to
Plaintiffs’ retained experts [or that a] confidential relationship
was created.”
The court denied Playboy’s sanctions motion because it
found AVS’s disqualification motion was not frivolous: “While the
court ultimately determined that Defendants had not met their
burden, reaching this conclusion required reviewing extensive,
contradictory evidence, weighing credibility, and applying a
complicated area of the law.”
12
AVS timely appealed.2
DISCUSSION
A. Standard of Review
“A trial court’s decision to grant or deny a motion to
disqualify counsel is generally reviewed for abuse of discretion.
[Citations.] ‘As to disputed factual issues, a reviewing court’s
role is simply to determine whether substantial evidence
supports the trial court’s findings of fact . . . . As to the trial
court’s conclusions of law, however, review is de novo; a
disposition that rests on an error of law constitutes an abuse of
discretion.’ [Citations.]” (O’Gara Coach Co., LLC v. Ra (2019)
30 Cal.App.5th 1115, 1123–1124.)
We also review the trial court’s evidentiary rulings for
abuse of discretion. (Loy v. Kenney (2022) 85 Cal.App.5th 403,
406.)
2 “[O]rders granting or denying attorney disqualification
motions are immediately appealable in California state courts.”
(URS Corp. v. Atkinson/Walsh Joint Venture (2017)
15 Cal.App.5th 872, 878.) At oral argument, Playboy argued
orders denying motions to disqualify experts, as opposed to
disqualifying counsel, are reviewable only by petition for
extraordinary writ. Case law holds to the contrary. (Brand v.
20th Century Ins. Co./21st Century Ins. Co. (2004)
124 Cal.App.4th 594, 601 [motion denying motion to disqualify
expert appealable either as final order on collateral issue or order
denying injunction].) Regardless, if arguendo the trial court’s
order regarding the experts is not appealable, we exercise our
discretion to treat the appeal from that order as a writ petition.
(A.M. v. Superior Court (2015) 237 Cal.App.4th 506, 515–516.)
13
B. Shadow Traffic
The parties agree, as the trial court found, that Shadow
Traffic sets forth the framework for analyzing AVS’s
disqualification motion. In Shadow Traffic, the trial court
disqualified the defendant’s counsel because counsel “had
retained as an expert witness an individual previously
interviewed by [the plaintiff’s counsel] and to whom confidential
information about [the plaintiff’s] lawsuit had been disclosed.”
(Shadow Traffic, supra, 24 Cal.App.4th at p. 1071.) The
defendant challenged the disqualification via a writ petition,
arguing, inter alia, “that communications with a prospective but
nonretained expert are not privileged and that those
communications cannot prevent the expert from subsequently
being retained by any other party.” (Id. at p. 1079.)
Our colleagues in Division Four disagreed, holding,
“[C]ommunications made to a potential expert in a retention
interview can be considered confidential and therefore subject to
protection from subsequent disclosure even if the expert is not
thereafter retained as long as there was a reasonable expectation
of such confidentiality.” (Shadow Traffic, supra, 24 Cal.App.4th
at p. 1080.)
The Court of Appeal then addressed “whether or not [the
plaintiff’s counsel] did, in fact, engage in a confidential
communication with [the potential expert].” (Shadow Traffic,
supra, 24 Cal.App.4th at p. 1082.) Although the parties
submitted competing declarations on this point, “the trial court
resolved this conflict in favor of [the plaintiff].” (Id. at pp. 1082–
1083.) The Court of Appeal held substantial evidence supported
the trial court’s finding the plaintiff’s counsel “imparted
confidential information” to the potential expert. (Id. at p. 1084.)
14
The next question was whether the expert, later retained
by the defendant, “disclosed to [the defendant’s counsel] the
confidential information conveyed by [the plaintiff’s counsel].”
(Shadow Traffic, supra, 24 Cal.App.4th at p. 1084.) Relying on
In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, the
Court of Appeal held that when a trial court finds a party has
conveyed confidential information to a potential expert later
retained by an opposing party, there is a rebuttable presumption
the expert disclosed that information to the opposing party.
(Shadow Traffic, at pp. 1084–1085.) The Court of Appeal
concluded the trial court implicitly found the defendant had not
rebutted the presumption, and although there was evidence
supporting the opposite conclusion, the reviewing court “may not
reweigh the evidence or substitute our deductions for those of the
trial court.” (Id. at pp. 1086–1087.) Accordingly, the court denied
the writ petition. (Id. at p. 1089.)
In sum, Shadow Traffic sets forth a three-part test for
disqualification of counsel based on retention of an expert who
previously communicated with an opposing party. First, was
there a reasonable expectation of confidentiality in the
communications between the expert and the opposing party?
(Shadow Traffic, supra, 24 Cal.App.4th at p. 1080.) Second, did
the opposing party convey confidential information to the expert?
(Id. at p. 1082.) Third, assuming the first two conditions are met,
can the party opposing disqualification rebut the presumption the
expert conveyed the confidential information to them? (Id. at
p. 1084.)
15
C. The Trial Court Abused Its Discretion In Sustaining
Many of Playboy’s Evidentiary Objections
AVS argues the trial court abused its discretion in
sustaining Playboy’s objections to 1) Downes’ and Matloob’s
descriptions of what was discussed in the calls between AVS and
Consor; 2) Consor’s draft retention agreement; and 3) Downes’
statement that in his career he had never participated in an
expert witness interview that did not involve confidential
information. We agree.
1. Downes’ and Matloob’s summaries of what was
discussed during the Consor calls are not
hearsay
The trial court erred in sustaining Playboy’s hearsay
objections to Downes’ and Matloob’s summaries of what was said
during the Consor calls because those summaries are not
hearsay. Hearsay “is evidence of a statement that was made
other than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid. Code,
§ 1200, subd. (a), italics added.)
Downes and Matloob described the content of the Consor
calls in order to demonstrate that confidential topics were
discussed. For that purpose, what matters is what was said and
whether the information could be deemed confidential, not
whether what was said was true. Put another way, it is the act of
stating confidential information that satisfies the second Shadow
Traffic prong, and a witness may testify to the fact that a
statement was made without violating the hearsay rule. (See
Bumb v. Bennett (1958) 51 Cal.2d 294, 301 [testimony that an
individual gave oral permission to an assignment of property not
16
hearsay, because witness “was testifying to the fact that the
statement was made”].)
Playboy argues the trial court “reasonably concluded that
the evidence lacked an adequate foundation and constituted
inadmissible hearsay” because Downes’ declaration did not
specify which statements he made and which statements were
made by others. Playboy does not explain how a failure to
identify the speaker creates a hearsay problem when, as here, the
statement is not offered to prove the truth of the matter stated
and therefore is not hearsay. That is, to the extent Downes did
not identify the particular speakers who purportedly conveyed
confidential information, it did not convert nonhearsay into
hearsay.
We further observe that several paragraphs of Downes’
declaration do specify the speaker. For example, he averred that
Matloob and Kay discussed the operations and financial condition
of their business; Downes “shared [his] personal work product
orally” on a measure of damages; Downes provided “an additional
piece of confidential information in writing”; and Consor
requested additional documents to “ascertain the veracity of
Defendants’ claims.” Thus, even if arguendo Playboy were
correct that failure to identify the speakers created a hearsay
problem, that rationale would not justify excluding nearly the
entirety of Downes’ description of the calls.
Playboy argues, “[W]hen Downes and Matloob purported to
generally recount what undifferentiated participants allegedly
discussed, disclosed, or communicated during the calls, the
testimony necessarily was offered for its truth—i.e., to establish
that certain purported statements were actually made.” Playboy
is correct the declarations were intended to establish certain
17
confidential statements were made during the Consor calls, but,
again, it is not hearsay to testify to the fact a statement was
made when the statement’s veracity is not at issue.
Playboy argues any error in sustaining the hearsay
objections was harmless because “[t]he trial court’s order strongly
suggests that it considered much of the challenged evidence
notwithstanding its evidentiary rulings.” Playboy notes the trial
court’s written order included “the substance of the allegedly
inadmissible testimony” when summarizing the factual and
procedural background of the case.
It is true the order summarizes the evidence to which the
trial court erroneously sustained objections, but the court also
wrote that Downes’ declaration, while “detailed,” was “rendered
inadmissible” to the extent it was “unclear what Dow[n]es
purportedly communicated as opposed to what he contends
someone else disclosed during the meeting.” The trial court
contrasted Downes’ declaration with the Consor declarations,
which the court found “clear, unequivocal and admissible.” In
other words, even if arguendo the trial court considered the
evidence in Downes’ declaration despite sustaining objections to
it, the court expressly discounted that evidence as “inadmissible”
while crediting Consor’s declarations as “admissible.” This was
prejudicial error.
Playboy argues there is no reasonable probability the
outcome would change if the trial court fully considered Downes’
and Matloob’s descriptions of the calls because “[t]he challenged
testimony was vague, internally imprecise, and lacking in
meaningful detail regarding who allegedly said what during the
calls.” We will leave it to the trial court on remand to determine
18
in the first instance the credibility and weight of the evidence
including the erroneously excluded evidence.
We note one paragraph in Downes’ declaration to which
Playboy objected generally as hearsay. Although certain portions
of the paragraph arguably could be hearsay if offered for their
truth, we conclude the paragraph is admissible for a nonhearsay
purpose. Downes averred that in the first Consor call, “Consor
made clear . . . that, before they would agree to be retained by
[AVS] as expert witnesses, they needed to be sure that they fully
believed in [AVS’s] claims and positions” and “[t]herefore . . .
requested that [AVS] provide additional documents and evidence
for review . . . .” Downes then stated, “This request was made so
that [Consor] could ascertain the veracity of Defendants’ claims,
but also meant that Defendants needed to provide details
regarding their strategy to convince Consor of the veracity of
their claims.” We conclude these statements are admissible for
the nonhearsay purpose of describing the chain of events.
We therefore hold the trial court abused its discretion in
sustaining Playboy’s objections numbered 6–20, 23–24, and 34.
2. Playboy’s other bases for objection are
unfounded
The trial court sustained Playboy’s objection to the
unsigned Consor retention agreement on the basis of relevance
and secondary evidence.3 This was an abuse of discretion. A
3 The trial court, despite sustaining Playboy’s objection to
the retention agreement, addressed the agreement in its order,
finding the agreement did not demonstrate an expectation of
confidentiality in the Consor calls because the agreement was
unsigned and was not circulated until after the calls. Because
19
document exchanged between Consor and AVS that includes
confidentiality provisions is relevant to whether there was an
expectation of confidentiality in the communications between
Consor and AVS. This is not to say the trial court must draw any
particular inference from the unsigned retention agreement, but
we cannot say it is irrelevant.
The secondary evidence rule is codified in Evidence Code
section 1521, which provides, in relevant part, “The content of a
writing may be proved by otherwise admissible secondary
evidence. The court shall exclude secondary evidence of the
content of writing if the court determines either of the following:
[¶] (1) A genuine dispute exists concerning material terms of the
writing and justice requires the exclusion. [¶] (2) Admission of
the secondary evidence would be unfair.” (Evid. Code, § 1521,
subd. (a).) Playboy does not explain, nor did it below, how these
bases for exclusion apply in this case. Further, Playboy cites no
authority, nor are we aware of any, prohibiting use of an
authenticated copy of a document to prove the contents of the
original document.
The trial court also erred in sustaining Playboy’s relevance
and foundation objections to Downes’ statement that in his
career, he had never participated in an expert witness interview
in which confidential information was not exchanged. Downes’
experience in past expert witness interviews is relevant to
demonstrate habit or custom. (See Evid. Code, § 1105.) Downes
was averring about his own personal experience, so there was no
foundational problem. The trial court was not obliged to find
Playboy may reassert the objection on remand, however, we
address AVS’s challenge.
20
Downes’ statement credible or draw any particular inference
from it, but the court should not have excluded it from
consideration.
We therefore hold the trial court abused its discretion in
sustaining Playboy’s objections numbered 25 and 30.
D. The Trial Court Must Weigh Evidence and Determine
Credibility When Evaluating Shadow Traffic’s First
Two Steps
AVS argues the first two steps of the Shadow Traffic
framework — whether there was a reasonable expectation of
confidentiality and whether confidential communications
occurred — require only a “prima facie showing” with “no
credibility determination.” AVS contends the only question is
“whether the Downes declaration, taken at face value, makes out
the Shadow Traffic threshold showing.” AVS asserts any
weighing of evidence “belongs to the rebuttal step, not the
threshold step,” and the trial court wrongly denied AVS Shadow
Traffic’s third-step rebuttable presumption by considering
Playboy’s contrary evidence at the prima facie stage. Because
this issue may arise on remand, we will address it.
Shadow Traffic itself defeats AVS’s argument. As
summarized ante, when analyzing whether confidential
communications had taken place, the Shadow Traffic court noted
“the parties submitted conflicting declarations,” and “the trial
court resolved this conflict in favor of [the party seeking
disqualification].” (Shadow Traffic, supra, 24 Cal.App.4th at
pp. 1082–1083.) In other words, the trial court in Shadow Traffic
did not take the evidence supporting disqualification at face
value, but weighed it against the competing evidence before
concluding confidential communications had taken place. Had
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the Court of Appeal in Shadow Traffic intended only a prima
facie showing to trigger the rebuttable presumption, it would not
have discussed the trial court’s weighing of evidence nor would it
have deferred to the trial court’s resolution of the conflicting
declarations. Nothing in Shadow Traffic suggests the trial court
should not weigh evidence and make credibility determinations
at the first two steps of the inquiry.
Our conclusion is supported by Western Digital Corp. v.
Superior Court (1998) 60 Cal.App.4th 1471 (Western Digital), a
case cited by AVS applying the Shadow Traffic framework. In
that case, the trial court “specifically found” counsel had
“revealed confidential information” to an expert consulting firm,
with an “[i]mplicit” finding counsel “had a reasonable expectation
of confidentiality in its discussions with the consulting firm.”
(Western Digital, at p. 1480.) The reviewing court stated its
“review of the challenged findings is limited to determining
whether they are supported by substantial evidence,” which it
concluded they were. (Id. at pp. 1480–1482.) As in Shadow
Traffic, the question was not whether the party seeking
disqualification had made an adequate prima facie showing, but
whether the trial court’s findings of fact were supported by
substantial evidence.4
4 In Western Digital, the Court of Appeal granted a writ
reversing the trial court’s disqualification of Western Digital’s
counsel and expert witness. (Western Digital, supra,
60 Cal.App.4th at p. 1476.) The appellate court concluded
substantial evidence supported the trial court’s finding opposing
counsel had provided confidential information to employees of the
consulting firm that later supplied the expert retained by
Western Digital. (Id. at p. 1482.) The expert retained by
22
We therefore hold the trial court must weigh evidence and
determine credibility at the first two steps of the Shadow Traffic
framework. A prima facie showing is not sufficient to trigger the
third-step presumption.
E. Case Law Does Not Compel the Findings Urged by
AVS
AVS asserts on appeal interpretations of case law with
which we disagree. We address those interpretations to assist
the trial court on remand.
AVS argues, “Courts applying Shadow Traffic have held
that self-serving declarations from conflicted experts asserting
that no confidential information was shared do not defeat the
moving party’s threshold showing — even when the denials are
unequivocal.” AVS cites Shadow Traffic and Rocha v. Ford Motor
Co. (S.D.Cal. 2025) 811 F.Supp.3d 1188 (Rocha), but these cases
do not support this proposition.
In Shadow Traffic, the experts submitted declarations
stating they did not recall whether there was an exchange of
confidential information or whether they were told to keep the
Western Digital, however, did not work for the consulting firm at
the time opposing counsel met with the firm, but was hired by
the consulting firm several months later. (Id. at p. 1477.) The
appellate court concluded disqualification was unwarranted
because there was no evidence the expert personally had received
any confidential information, the consulting firm had established
an ethical screen preventing the employees who had received
confidential information from disclosing that information to the
expert or his team, and the party seeking disqualification
“presented no evidence the screening wall . . . was breached.” (Id.
at pp. 1484, 1488.)
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information in confidence. (Shadow Traffic, supra,
24 Cal.App.4th at pp. 1082–1083.) The Court of Appeal wrote,
“[T]he failure to recollect is pregnant with the concession that the
event in question may, in fact, have occurred but that the
declarant has no immediate memory of it.” (Id. at p. 1083.) The
court then said, “In any event, to the extent these declarations
created a conflict in the evidence, the trial court resolved this
conflict in favor of [the party seeking disqualification].” (Ibid.)
In Rocha, the federal district court applied the Shadow
Traffic framework to find an expert’s claim he had not
participated in matters concerning confidential information was
belied by his admissions suggesting he had received such
information. (Rocha, supra, 811 F.Supp.3d at pp. 1200–1201.)
These cases do not stand for the proposition that an
expert’s unequivocal denial that he received confidential
information cannot be substantial evidence to defeat a
disqualification motion. Firstly, neither case involved an
unequivocal denial — the Shadow Traffic experts did not deny
but instead stated they did not recall receiving confidential
information, and the Rocha expert’s averments were self-
contradictory. Secondly, neither case held that a purportedly
conflicted expert’s declaration was insufficient as a matter of law,
as AVS implies. Put differently, the fact the trial courts in those
cases found the experts’ declarations wanting does not equate to
a holding that such declarations can never be sufficient.
Challenging the trial court’s finding there was no
expectation of confidentiality in AVS’s meetings with Consor,
AVS cites Western Digital for the proposition that “there is an
implied expectation of confidentiality in every substantive pre-
retention expert interview.” Western Digital does not so hold.
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In Western Digital, counsel for the party seeking
disqualification “attest[ed] to their expectation, based on years of
experience dealing with expert witnesses, that preretention
interviews are always held in confidence.” (Western Digital,
supra, 60 Cal.App.4th at p. 1481.) One of the experts also
testified at deposition “he ha[d] always treated [preretention]
communications as confidential.” (Ibid.) The Court of Appeal
held this was substantial evidence supporting the trial court’s
finding the party seeking disqualification had a reasonable
expectation of confidentiality in its communications with the
experts. (Ibid.) This case-specific finding does not equate to a
holding that an expectation of confidentiality exists in “every
substantive pre-retention expert interview,” as AVS claims.5
5 AVS cites eight unpublished Court of Appeal decisions
purportedly concerning disqualification motions and Shadow
Traffic. The California Rules of Court forbid citing unpublished
Court of Appeal decisions unless “the opinion is relevant under
the doctrines of law of the case, res judicata, or collateral
estoppel,” or “the opinion is relevant to a criminal or disciplinary
action because it states reasons for a decision affecting the same
defendant or respondent in another such action.” (Cal. Rules of
Court, rule 8.1115(a)–(b).) AVS does not contend its cited
unpublished decisions fall within these exceptions. We remind
AVS’s counsel of its obligation to abide by the Rules of Court.
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DISPOSITION
The order denying the disqualification motion is reversed.
The matter is remanded for the trial court to reconsider the
motion consistent with this opinion’s rulings and guidance.
Appellants are awarded their costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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