An Attorney “may not Read a Document any more Closely than is Necessary to Ascertain that it is Privileged” and Once it is “Apparent” that Document is Privileged then Attorney Must Immediately Notify Opposing Counsel; Plaintiffs’ Counsel Extensive Review and Distribution of Defense Counsel’s Work Product Document Compelled Disqualification of Plaintiffs’ Counsel and Experts in Products Liability (not Class Action) Case California Supreme Court Holds
Plaintiffs filed a products liability lawsuit against Mitsubishi Motors and others because their Mitsubishi Montero “rolled over while being driven on a freeway.” Rico v. Mitsubishi Motors Corp., ___ Cal.4th ___ (Cal. December 13, 2007) [Slip Opn., at 2]. Though the case was not filed as a class action, the ethical issues raised are important not only to class action defense counsel, but to class action plaintiff lawyers as well. As part of his preparations, defense counsel (Yukevich) and Mitsubishi’s case manager (Rowley) met with and two defense experts “to discuss their litigation strategy and vulnerabilities.” Id. Rowley functioned as a “paralegal” during this six-hour meeting, taking notes on Yukevich’s computer and never seeing a print copy of those notes. “Yukevich printed only one copy of the notes, which he later edited and annotated,” and the trial court found that “the sole purpose of the document was to help Yukevich defend the case.” Id. Yukevich printed a copy of this document, which was not labeled as “confidential” or “work product,” and somehow plaintiffs’ counsel obtained a copy (see Note). When defense counsel learned this fact he demanded the document and all duplicates be returned and immediately moved to disqualify “plaintiffs’ legal team and their experts.” Id., at 4-5. The trial court granted the motion, and the Court of Appeal affirmed. The California Supreme Court concurred that the invasion of defense counsel’ work product compelled disqualification of plaintiffs’ counsel and experts.
After summarizing well-settled law governing attorney work product, see Rico, at 6-7, the Supreme Court rejected plaintiffs’ argument that the document “is not work product because it reflects the statements of declared experts,” id., at 7. The Supreme Court explained that the document was not a “transcript” of the six-hour meeting; rather, “[i]t contains Rowley’s summaries of points from the strategy session, made at Yukevich’s direction” that Yukevich edited “in order to add his own thoughts and comments, further inextricably intertwining his personal impressions with the summary.” Id., at 7. As the Court concluded at page 8, “[T]he document does not qualify as an expert’s report, writing, declaration, or testimony. The notes reflect the paralegal’s summary along with counsel’s thoughts and impressions about the case.” (Italics in original.) Thus, the Supreme Court held, “The document was absolutely protected work product because it contained the ideas of Yukevich and his legal team about the case.” Id., at 8.
The question, then, was what ethical duty did plaintiffs’ counsel owe once he received the document? The Supreme Court discussed with approval State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644 (Cal.App. 1999) (State Fund). Rico, at 10-12. State Fund “declared the standard governing the conduct of California lawyers” as follows at pages 656-57:
When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged.
The fact that Yukevich’s document was not “clearly flagged as confidential” was immaterial: “‘[T]he absence of prominent notations of confidentiality does not make them any less privileged.’” Rico, at 12 (quoting Court of Appeal opinion). “The State Fund rule is an objective standard. In applying the rule, courts must consider whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion, and when counsel’s examination should have ended.” Id., at 12. Here, plaintiffs’ counsel admitted that he knew Yukevich did not intend to disclose the document within “a minute or two” of reviewing the document. Id., at 13.
Under the circumstances of the case, disqualification of plaintiffs’ legal team and experts was the only appropriate remedy because of the “unmitigable damage caused by [plaintiffs’ counsel’s] dissemination and use of the document.” Rico, at 13-14 (quoting Court of Appeal opinion). Accordingly, the Supreme Court affirmed the trial court’s order of disqualification. Id., at 15.
NOTE: Defense counsel stated that the only print copy of this document was contained in his “case file” which he left along with his computer and briefcase in a conference room during a deposition while he used the restroom. Plaintiffs’ counsel asked other members of the defense team to leave the deposition room, so they were alone with Yukevich’s computer, briefcase and case file for several minutes. Plaintiffs’ counsel insisted that he obtained the document from the court reporter. The court reporter testified that “she did not remember ever having given exhibits to an attorney,” that “she had never seen the document in question,” and that if any documents other than exhibits were on a table at the conclusion of a deposition, she left them there. Rico, at 3. The trial court “ultimately concluded that the defense had failed to establish that [plaintiffs’ counsel] had taken the notes from Yukevich’s file” and, accordingly, that plaintiffs’ counsel “came into the document’s possession through inadvertence.” Id., at 4. We do not summarize the gamesmanship employed by plaintiffs’ counsel to keep the existence of the document secret. See id., at 4-5.
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