Friday, December 14, 2007
S.C. Upholds Lawyer’s Ouster for Reading Privileged Document
Counsel to Whom Paper Is Mistakenly Sent Has Duty of Prompt Return, Justices Say
By KENNETH OFGANG, Staff Writer
A lawyer who inadvertently receives a privileged document from opposing counsel must stop reading it once its privileged nature becomes clear, and must immediately contact the lawyer who mistakenly sent it, the California Supreme Court unanimously ruled yesterday.
“We conclude that...an attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged,” Justice Carol Corrigan wrote. “Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.”
The justices affirmed lower court rulings disqualifying El Segundo lawyer Raymond Paul Johnson from continuing to represent several plaintiffs who sued Mitsubishi Motors Corporation and the California Department of Transportation following a rollover accident on a freeway, and disqualifying his experts from the case as well.
Acquired Privileged Material
The events leading to Johnson’s disqualification began when he acquired notes about the case belonging to defense attorney James Yukevich of the Los Angeles firm Yukevich & Sonnett, who was attending a deposition at Johnson’s office. The notes reflected comments made at a strategy session attended by Mitsubishi lawyers and their experts.
How Johnson got the notes was disputed; Johnson maintained they were accidentally given to him by the court reporter, while Yukevich insisted they were removed from his file when he went to the restroom while waiting for the witness to arrive.
San Bernardino Superior Court Judge Ben Kayashima ordered an evidentiary hearing on Mitsubishi’s motion to disqualify Johnson. The court reporter was deposed, and testified that she had no particular recollection of the deposition, but that her general practice was to place exhibits in a plastic covering and to leave all other documents on the table.
Kayashima, noting that the deposition lasted eight hours and involved many documents, concluded that Johnson must have obtained the document inadvertently. But he also found that Johnson knew that Yukevich did not intend to turn it over to the defense, yet disseminated to his cocounsel and experts, discussed the contents with them, and used them while deposing a witness who was present at the strategy meeting.
Yukevich filed his motion to disqualify the day after that deposition, which he did not attend.
Kayashima ruled that the document constituted work product and attorney-client communication, and was absolutely privileged, and that Johnson acted unethically in continuing to examine the document after he realized it was intended to be confidential, by failing to notify Yukevich that he had it, and by using it at the subsequent deposition.
There was no alternative to disqualification, the judge said, because “the bell cannot be ‘unrung’ by use of in limine orders.”
The Fourth District Court of Appeal affirmed, although it disagreed with the trial judge regarding attorney-client privilege. The issue was not raised before the Supreme Court, and Corrigan said in a footnote that the high court was taking no view on it.
Corrigan agreed with the lower courts that the entire document constituted work product, rejecting the argument that it was an expert witness statement. She pointed out that it reflected observations recorded by a Mitsubishi case manager at Yukevich’s direction, not a verbatim record, and that Yukevich had edited it to reflect his own thoughts.
“The document was absolutely protected work product because it contained the ideas of Yukevich and his legal team about the case,” the justice wrote.
‘Fair and Reasonable’
Corrigan endorsed as “fair and reasonable” the approach taken by the Court of Appeal in State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644. There, the court held that a lawyer was properly sanctioned after he received documents marked “confidential,” “attorney-client communication/attorney work product,” and “do not circulate or duplicate” contained in three boxes of discovery material, but read them and refused to return them.
“The standard was properly and easily applied here,” Corrigan said. “Johnson admitted that after a minute or two of review he realized the notes related to the case and that Yukevich did not intend to reveal them. Johnson’s own admissions and subsequent conduct clearly demonstrate that he violated the State Fund rule. We note, however, that such admissions are not required for the application of the objective standard in evaluating an attorney’s conduct.”
The case is Rico v. Mitsubishi Motors Corporation, 07 S.O.S. 7233.
Copyright 2007, Metropolitan News Company