The Supreme Court holds that use of an opponent’s absolute work product justifies disqualification.
Mitsubishi was a defendant in a roll over accident lawsuit. Its lawyers James Yukevich and Alexander Calfo met with Mitsubishi representatives and two designated defense experts to discuss their litigation strategy and vulnerabilities. Yukevich asked Mitsubishi’s case manager, Jerome Rowley, to take notes at the meeting and summarize portions on Yukevich’s computer. The trial court found Rowley acted as Yukevich’s paralegal. Yukevich printed only one copy of the notes, which he edited and annotated. Yukevich never intentionally showed the notes to anyone, and the court determined that the sole purpose of the document was to help Yukevich defend the case.
Yukevich brought the notes to the offices of plaintiffs’ counsel, Raymond Johnson. Johnson acquired Yukevich’s notes under disputed circumstances; Johnson maintained that they were accidentally given to him by the court reporter. Yukevich moved to disqualify Johnson and his experts. Ultimately the trial court ruled that Johnson obtained the documents inadvertently.
Although the notes were not labeled as “confidential” or “work product,” Johnson admitted that he knew within a minute or two that the document related to the defendants’ case and that Yukevich did not intend to produce them. He believed it would be a powerful impeachment document. He copied it, made his own notes on his copy, gave copies to his co-counsel and his experts, and discussed the contents with each of his experts.
Johnson used the notes during the depositions of defense experts to impeach them with prior inconsistent statements. Calfo, not Yukevich, attended these depositions. Calfo was not shown the document and when he asked about the source of the document Johnson gave an equivocal answer. Calfo repeatedly objected to the line of inquiry with respect to the document stating he did not know where the exhibit came from. Johnson gave Calfo the document after the deposition. When Yukevick realized that Johnson had his only copy of the strategy session notes he and Calfo wrote to Johnson demanding the return of all duplicates and moved to disqualify plaintiffs’ legal team and their experts on the ground that they had become privy to and had used Yukevich’s work product. Mitsubishi contended that Johnson’s unethical use of the notes and his revelation of them to co-counsel and their experts irremediably prejudiced defendants.
The trial court concluded that the notes were absolutely privileged by the work product rule. It ruled that Johnson had acted unethically by examining the document more closely than was necessary to determine that its contents were confidential, by failing to notify Yukevich that he had a copy of the document, and by surreptitiously using it to gain maximum adversarial value from it. Johnson’s violation of the work product rule had prejudiced the defense and this could not be cured by use of in limine orders. Plaintiff’s counsel and experts were disqualified.
The Supreme Court agreed that the entire document was protected attorney work product under C.C.P. § 2018.030. The policy of this section is to provide attorneys with the degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but also the unfavorable aspects of those cases. It absolutely protects writings that contain an attorney’s impressions, conclusions, opinions, or legal research or theories. It extends to an attorney’s written notes about a witness’s statements and when a witness’s statement and the attorney’s impressions are inextricably intertwined, the work product doctrine provides that absolute protection is afforded to all of the attorney’s notes.
The fact that the notes contained the statements of declared experts did not remove them from work product protection. The notes contained summaries of points from the strategy session, was edited by Yukevich to add his own thoughts inextricably intertwining his personal impressions with the summary. The document reflects the attorney’s strategy and opinion as to the important issues in the case. The dialogue format of the notes and information attributed to Mitsubishi’s experts did not transform the document into the expert’s report.
The Court noted that an attorney who receives an opponent’s privileged work product has an ethical duty despite precedent holding that counsel has a duty to use, to the client’s advantage, non-privileged portions of documents inadvertently received. In a prior case, an attorney had received a memo from an opposing counsel from his client’s risk manager, who had received it in a package from the insurance broker. Through the memo the attorney learned of the existence of a witness he deposed. A sanctions order against the attorney was reversed because the attorney was free of wrongdoing in receiving the document and the existence and identification of the witness was not privileged by the attorney work product rule. There was no prejudice to the opposing party, who prevailed at trial. By contrast, Yukevich’s notes were absolutely protected by the work product rule.
More recent precedent set forth clear standards for the handling of inadvertently obtained absolute work product. A plaintiff’s attorney sent defense counsel three boxes of documents that included a memo clearly labeled as confidential, attorney-client communications, and attorney work product. The Court of Appeal held the inadvertent disclosure did not waive any privilege and articulated a prospective standard for counsel to adhere to when receiving inadvertent work product from an opponent.
An attorney inadvertently receiving privileged material should refrain from examining the material more than is necessary to determine the item is privileged; should immediately notify the sender; should try to reach agreement with the sender or if not possible should resort to the court for guidance. The Supreme Court endorsed this approach, which it characterized as fair and reasonable, and addresses the realities of modern massive document productions. An attorney has an obligation not only to protect his client’s interests, but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice. The guidelines are therefore reasonable.
Mere exposure to an adversary’s confidences is insufficient to warrant disqualification. Such a draconian rule might nullify a client’s right to representation by chosen counsel whenever an attorney was exposed to an adversary’s confidences by inadvertence or devious design. Disqualification is justified if an attorney conducts himself or herself in an unethical manner. Here, Johnson acted unethically when he made copies and disseminated them, causing damage that placed the defendants at a great disadvantage.
The court was unpersuaded that the use of the document should be excused because it revealed that the defense experts gave false testimony during their depositions. The Court was not persuaded that the statements attributed to the experts in the document contradicted their testimony or that the experts adopted the statements attributed to them. Moreover, a court cannot evaluate the content of a writing protected by the attorney work product privilege because it would invade the attorney’s thought processes. Once the court determines that the writing is absolutely privileged, the inquiry ends. Yukevich’s personal notes should never have been subject to Johnson’s scrutiny and use.
Nor did the crime or fraud exception apply to privileged work product in a civil proceeding because such a document is not discoverable under any circumstances by the terms of the statute. The crime or fraud exception only applies in an official investigation by a law enforcement agency or proceeding or action brought by a public prosecutor if the services of the lawyer were sought or obtained to enable or aid anyone to commit a crime or fraud.
Comment: Disqualification is a high price for both the attorney and client to pay. An attorney disqualified for ethical violations could be subject to a claim by the client as well as the indignity and economic consequences of disqualification. Attorneys who act in an ethical manner in the face of such a temptation protect themselves, the client, and the administration of justice.