Metropolitan News-Enterprise


Thursday, May 13, 2010


Page 1


Court Addresses Attorney-Client, Work Product Protection Waiver


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out a district court’s decision that a plaintiff’s reliance on his former attorney as a witness to an alleged coverup of wrongdoing at the plaintiff’s workplace waived any protection afforded by the attorney-client privilege and work product doctrine.

In a decision by U.S. District Judge Roger T. Benitez of the Southern District of California, sitting by designation, a three-judge panel explained that Rolando Hernandez’s disclosure of his former attorney’s notes and communications regarding the purported conspiracy did not waive protection for materials unrelated to that claim.

Hernandez retained attorney Gregory Ferguson to represent him in a suit against the City of Vancouver, Wash. for race and national origin discrimination based on disparate treatment, retaliation and a hostile work environment while he was employed as a mechanic for the fire department.

Initial Agreement

He said he told Ferguson that a man named Mark Tanninen had witnessed the discrimination and Tanninen initially agreed to provide a signed statement corroborating Hernandez’s claims. However, after Tanninen spoke with Deputy Fire Chief Steve Streissguth, he allegedly told Ferguson he “could not do that to [Streissguth],” and declined to become involved in the case.

Ferguson then referred the matter to another attorney and Hernandez’s complaint was amended to include an allegation of a conspiracy to conceal proof of his claims in violation of 28 U.S.C. § 1985(3).

When the city later moved for summary judgment, Hernandez provided an affidavit from Ferguson and some of Ferguson’s handwritten notes as evidence in opposition. U.S. District Judge Franklin D. Burgess of the Western District of Washington granted the city’s motion, but a prior panel of the Ninth Circuit reversed.

Motion to Compel

On remand, the city moved to compel production of 35 documents that Hernandez claimed were protected by the attorney-client privilege, the work product doctrine or both, contending that any privilege that once existed with respect to Ferguson was waived entirely since Hernandez had relied on the attorney as a witness to Tanninen’s conduct.

Burgess agreed and ordered the documents be produced.

Hernandez then filed an interlocutory appeal, which the appellate court treated as a petition for writ of mandamus.

Benitez reasoned that the district court had not clearly erred in finding that Hernandez waived protection pertaining to communications and materials related to the conspiracy claim since he had disclosed favorable portions of Ferguson’s conversations with Tanninen and produced some of Ferguson’s notes regarding the same.

But the jurist emphasized that protection can only be waived with respect to the matters disclosed, which in Hernandez’s case were limited to the alleged conspiracy, and concluded that the district court’s finding of a blanket waiver as to the entire case was overbroad.

Benitez said such a ruling was “particularly injurious” to Hernandez, because it “could result in matters far beyond the scope of the waiver being disclosed, including case strategy, the strengths and weaknesses of Hernandez’s claims, and all communications between Ferguson and Hernandez,” and concluded that writ relief was appropriate to correct the scope of the district court’s waiver ruling.

Judges Ronald M. Gould and Richard C. Tallman joined Benitez in his decision.

The case is Hernandez v. Tanninen, 09-35085.


Copyright 2010, Metropolitan News Company