Playboy Enterprises Intl. v. Advanced Vita Supplements Corp. CA2/1

Opinion

Filed 9/21/26 Playboy Enterprises Intl. v. Advanced Vita Supplements Corp. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 21 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.)

23 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.

24 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.

25 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.