I. COMMENCEMENT OF COURT PROCEEDINGS. On February 21, 1992, the Engallas filed their complaint in Alameda County Superior Court. They alleged, inter alia, fraud as a defense to enforcement of the arbitration provision and as an affirmative claim for damages. On March 20, Kaiser removed the case to the United States District Court for the Northern District of California, claiming that the action and all issues presented were subject to the rule of federal preemption contained in the Employee Retirement Income Security Act of 1974 (29 U.S.C. @ 1132, 1144). At about the same time, Kaiser proposed to continue the arbitration process. The Engallas declined the offer and, instead, filed a motion to remand. On June 19, the federal court granted the Engallas' motion in its entirety and remanded the matter back to state court. >? Good! Upon remand, the Engallas immediately filed a motion to compel discovery they had served prior to Kaiser's removal effort. Kaiser responded with a petition to compel arbitration and stay the court action. The parties thereafter briefed both the discovery and arbitration motions, and the trial court heard lengthy argument and took the matters under submission. On September 29, 1992, the court issued an order continuing the matter for 90 days to permit the Engallas to make their "best showing with respect to the evidentiary grounds that exist to warrant removal of this case from the arbitration process." Discovery rulings were made only with respect to discovery that specifically pertained to the arbitration (as opposed to the medical malpractice) issues. The parties embarked upon a course of discovery which was limited in light of the summary nature of the petition Kaiser had filed. The Engallas ultimately had five months to complete discovery, during which time thirteen motions were filed and more than a dozen depositions were taken. n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 The trial court appointed the Honorable Harry Low, retired, to preside over the depositions, which were taken of Mr. Rand, Mr. McComas, Ms. Shiffrin, and a number of other Kaiser personnel, including Scott Fleming (Kaiser's former general counsel, who initially designed and drafted the arbitration provision), Arthur Bernstein (Kaiser's senior counsel who assisted Mr. Fleming and who was assigned the task of explaining the program to large group subscribers and giving speeches to large organizations), and the chief (Dr. Louise Chiu) and senior counsel (Milton Cooper), respectively, of Kaiser's Northern California regional legal department. The depositions of party arbitrators Ney and Molligan were also taken. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The parties then submitted further briefs in connection with Kaiser's petition to compel arbitration. The Engallas also moved for summary adjudication of issues by which they asked for a judicial determination, pursuant to section 437c, subdivision (f), that Kaiser owed them certain duties. Specifically, the Engallas sought a ruling that Kaiser owed fiduciary duties with respect to the design and administration of the arbitration procedures, and heightened duties of good faith and fair dealing sufficient to subject Kaiser to tort liability for the breach thereof. In support of this motion, the Engallas submitted declarations from statistical expert Michael J. Sullivan, arbitration expert Francis O. Spalding, and the Honorable Robert Cooney, retired, who had been appointed as the neutral arbitrator. On March 25, 1993, the Engallas filed a further motion to compel disclosure of documents claimed to be privileged and asked the court to review Kaiser's claims of privilege and work product protection in light of the evidence that had been developed in discovery. The court had previously ordered Kaiser to produce certain documents listed in privilege logs pursuant to the "business capacity" exception to the attorney-client privilege, but did not have the benefit of the declarations or other evidence of fraud that was offered at the final hearings. A hearing on Kaiser's petition and the Engallas' two motions was set for May 18, 1993. At the outset of the hearing, the court denied the motion for summary adjudication of issues based on technical objections raised by Kaiser. The ruling was expressly made without prejudice. Because of the length of the hearing, the court did not have time to hear oral argument on the discovery motion, but indicated its intention to file a decision within several days. The bulk of the hearing was, thus, focused on Kaiser's petition to compel arbitration. On May 24, 1993, the trial court issued its order denying Kaiser's petition after making specific findings of fact on the issue of fraud both "in the inducement" and "in the application" of the arbitration provision. The court further found that the provision, as applied, was overbroad, unconscionable and violative of public policy, and that equitable considerations peculiar to this case required the invalidation of the arbitration provision. On June 4, 1993, a hearing was held on the discovery motion. At that hearing, defense counsel advised the court that Kaiser would not appeal the decision denying the petition, conceding that the court's ruling on the petition "was quite correct." However, Kaiser later reconsidered and so advised the court on July 21, 1993, the date it filed its notice of appeal. On August 18, the trial court filed its order compelling disclosure of 14 documents reflecting Kaiser's internal evaluation of the arbitration program (the arbitration memoranda) and Mr. McComas's handling of this specific matter (the McComas file). On October 1, Kaiser filed an amended notice of appeal, seeking review of the August 18 discovery order. On October 18, Kaiser filed a petition for writ of mandate and/or prohibition, also for the purpose of obtaining review of the August 18 discovery order.