matter has not been significant enough to warrant the trial court’s finding that Valla’s files should be deemed under the district attorney’s “control” for purposes of Brady. In so concluding, we again note that, below, the trial court relied primarily upon the sharing of legal citation and “analysis” between Valla and the police or district attorney, and the delegating by the district attorney to Valla of the task of hiring and paying for a forensic accountant to prepare a report and testify regarding the factual basis for the charges against defendant. However, based on our own review of the record, we conclude the evidence is in fact much more benign than the trial court’s ruling would suggest. For example, with respect to the sharing of legal authority, it appears Valla did no more than share a handful of legal citations relating to the ratification defense based on the research the firm had already undertaken in the civil action it was pursuing against defendant on its client’s behalf – a task that took only about five or 10 minutes. Contrary to the trial court’s finding, however, the firm did not undertake on behalf of, or provide to, the district attorney any legal analysis, the sort of cooperation that, under the case law, might place a private party under the prosecution-team umbrella. Next, the trial court accurately found that the district attorney suggested to Valla, as legal representative to IAR, that it select and hire a forensic accountant to examine and then testify regarding the financial evidence of defendant’s crimes. However, this circumstance, if anything, reflects the complex nature of these crimes rather than any submission of Valla to the direction of the prosecutor. As deputy district attorney Nardi readily acknowledged to Valla, her office had insufficient experience and resources to adequately investigate “an embezzlement case of this magnitude,” particularly in light of the complex global corporate structure of IAR and the extent of defendant’s alleged wrongdoing (spanning “nearly a decade”). Further, the accountant ultimately retained by IAR , Steven Smith, had provided routine accounting and tax services to IAR since 2012 (to wit, before law enforcement began investigating the underlying crimes in this case), and had been designated by IAR as an expert witness in the civil action against defendant. According to Smith’s testimony, he, at Valla’s request, “independently took the data, the credit card receipts and created our own report [for IAR].” Then, once
Smith completed his report, he sent it to Valla and IAR’s finance manager before the report ultimately “found its way to the District Attorney.” While Smith later testified at the preliminary hearing for the prosecution, he did not consider his work to be for or at the direction of the prosecution; rather, he worked independently for IAR. Nor did deputy district attorney Nardi understand Smith to be part of the prosecution’s team, much less exert the degree of control, direction or assistance over his work as would be necessary to trigger the prosecution’s disclosure obligations under Brady. Given this record, we conclude the fact that law enforcement may have obtained more specialized information and expertise from the crime victim, IAR, in this case than it would have in a more ordinary criminal case does not, without more, prove Valla and the prosecution were “team members” for purposes of Brady. (See Meregildo, supra, 920 F.Supp.2d at p. 441 [“At its core, members of the team perform investigative duties and make strategic decisions about the prosecution of the case”].) Finally, with respect to Valla’s request for information from the district attorney’s office about the crimes with which they intended to charge to defendant, the record reflects that Valla made this request in order to prepare questions regarding the elements of these crimes for defendant’s already-scheduled deposition in the civil matter. It does not, to the contrary, reflect Valla’s investigation of defendant at the direction of or on behalf of the prosecution in this criminal matter. Further, according to the record, in response to Valla’s request, the police merely provided the firm with two citations to Penal Code provisions. While it is true that Valla later gave law enforcement a copy of defendant’s deposition transcript with certain portions underlined, there is no evidence that Valla asked any question during defendant’s deposition at the direction of the police, or shared or highlighted deposition testimony for any reason other than its own preparation in the civil matter. As such, the record establishes no more than that Valla, attorney of record for IAR in a civil lawsuit against defendant, was discharging its fiduciary duty to thoroughly investigate the facts and seek appropriate legal redress on behalf of its client rather than working on behalf, and as an agent, of the government to prosecute defendant in the criminal realm.
team. While it is no doubt true that Valla was engaged in investigating the facts of defendant’s misconduct and crafting a trial strategy, it undertook these tasks on behalf of its corporate client, IAR, in its role as plaintiff’s attorney in the civil lawsuit brought by IAR against its former employee. The fact that these tasks sometimes overlapped with the district attorney’s efforts to prosecute defendant, and that Valla cooperated with the district attorney in its efforts to uncover the truth about defendant’s wrongdoing, does not, without more, make them “team members” for purposes of Brady. (Cf. People v. Uribe, supra, 162 Cal.App.4th at pp. 1479-1481 [holding that a SART examiner was part of the prosecution team where “[the exam] was clearly spearheaded by the police,” a “major purpose of the examination was to determine whether the allegation could be corroborated with physical findings [that the victim had been sexually abused],” the examiner “collected and preserved physical evidence, consistent with statutory protocol,” and “according to her practice — after completion of the SART examination and after she and Dr. Kerns reach concurrence as to their findings as contained in the written report — [the examiner] provided a copy of the forensic report to the police”].) Accordingly, we conclude the trial court’s order was rendered in error and must be reversed. DISPOSITION A peremptory writ of mandate is entered directing the trial court to set aside and vacate its order of February 8, 2016, with the instruction to enter a new order finding that petitioner Valla & Associates is not part of the prosecution team in this case for purposes of Brady v. Maryland (1963) 373 U.S. 83, 87. _________________________ Jenkins, J. We concur: _________________________
Pollak, Acting P. J. _________________________ Siggins, J. Trial Court: Superior Court, County of San Mateo Trial Judge: Hon. Joseph Scott Counsel for Petitioners IAR Systems Software, Inc.: Antonio Valla, Michael Purcell VALLA & ASSOCIATES, INC. Counsel for Petitioners Valla & Associates, Inc.: William D. Rauch LAW OFFICES OF WILLIAM RAUCH Counsel for Real Parties in Interest Nadim Shehayed: Thomas J. Nolan, Serenity Wang NOLAN BARTON BRADFORD & OLMOS LLP Counsel for Real Parties in Interest State of California: Kamala D. Harris, Attorney General Gerald A. Engler, Chief Assistant Attorney General