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Discovery Goofs


We recently received a set of documents from opposing counsel in a trust litigation case. As our co-counsel at another firm was reviewing the documents, she noticed that the plaintiffs' lawyers had inadvertently included certain recent correspondence both to and from their client. She immediately (and appropriately we now know) contacted opposing counsel and arranged for the return of the documents.

We don't believe this issue has cropped up before in our practice, nor, to our knowledge, have we ever inadvertently produced privileged or work product documents, although with the amount of documents produced in some cases, it's a wonder either hasn't happened. This is especially true, because culling responsive documents from a client's file is usually relegated to more junior lawyers. This month we take a look on the law related to inadvertently revealed documents.

In Rico v. Mitsubishi Motors Corp., 171 P.3d 1092 (Cal. Dec. 13, 2007), various plaintiffs sued two Mitsubishi corporations and the California Department of Transportation (Caltrans) after a Mitusbishi Montero rolled over in 1998, killing Denise Rico and injuring Fernando Rico. After the lawsuit was initiated, Mitsubishi representatives had a six-hour meeting with their attorneys, James Yukevich and Alexander Calfo, and two defense experts to discuss litigation strategy and vulnerabilities. Mitsubishi's case manager (not an attorney) also attended the meeting and took notes on a computer in a dialogue style, summarizing the conversations. Yukevich later printed the notes and annotated them. The notes were dated -- but not labeled as "confidential" or "work product."

A couple of weeks later, Mitsubishi's Yukevich deposed the plaintiffs' expert witness, Anthony Sances, at the office of plaintiff's attorney, Raymond Johnson. Also attending the deposition was a court reporter and counsel for Caltrans. Yukevich and the other deposition attendees were told that Sances and Johnson would be late for the deposition. After waiting for some time, Yukevich went to the restroom, leaving his briefcase, computer and case file in the deposition room. The printed notes from the strategy meeting were in his case file.

While Yukevich was away, Johnson and Sances arrived. Johnson asked the court reporter and Caltran's attorney to leave the room. Yukevich returned to find the pair standing outside. He waited for five minutes, then knocked and asked to retrieve his briefcase, computer and case file.

Somehow, Johnson acquired Yukevich's strategy meeting notes. Johnson claimed that the court reporter had accidentally given them to him.

Yukevich maintained that the notes were taken from his case file while only Johnson and the plaintiffs' expert were in the deposition room.

Johnson later admitted that he knew within a minute or two of looking at the document that Yukevich did not intend to produce it and that it would be, as Johnson put it, a "powerful impeachment document." He made a copy of the document, studied it, and gave copies to co-counsel and plaintiffs' experts. Moreover, Johnson used the document while deposing the defense expert. (The document apparently indicated that the defense experts made statements at the strategy meeting that were inconsistent with their deposition testimony.)

Yukevich was not at this deposition but later learned that Johnson's questioning had referred to the document.

Mitsubishi moved to disqualify plaintiffs' counsel and experts on the grounds that they had become privy to, and used Yukevich's work product -- irremediably prejudicing the defendants.

The trial court conducted a hearing to determine how Johnson had obtained the document. Ample evidence was proffered that Johnson could have received the document from the court reporter at the deposition. The trial court thus ruled that Johnson came into possession of the notes inadvertently. Yet the trial court also concluded that the notes were absolutely privileged by the work product doctrine and that Johnson had acted unethically by examining the document more closely than necessary to determine that its contents were confidential. This misconduct was evidenced by Johnson's failure to notify Yukevich that he had the document and by surreptitiously using the document to his clients' advantage. Accordingly, the lower court disqualified plaintiffs' counsel and experts. The appellate court affirmed.

In its briefs to the California Supreme Court, Mitsubishi stated that, although Johnson immediately knew he was not meant to have the notes, he "studied them intensely, distributed them to his co-counsel and his experts, prepared for depositions of Mitsubishi experts using the notes, and directed his expert to undertake new testing."

The plaintiffs argued that Mitsubishi made Johnson the target of "vicious attacks on his honesty" with false accusations that Johnson stole the document and committed perjury. The plaintiffs also maintained that Yukevich's notes were not protected by the work product doctrine, because they reflected the statements of declared experts.

The California Supreme Court affirmed the lower courts' grant of the defendants' motion to disqualify the entire legal team, stating that the document was work product because it contained the ideas of Yukevich and his legal team about the case, and because Yukevich later added his own thoughts and comments to the notes "further inextricably intertwining his personal impressions with the summary." The court relied heavily on State Compensation Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999) for the proposition that when an attorney inadvertently receives a document, he may not read it "any more closely than is necessary to ascertain that it is privileged." The court emphasized that the rule established in State Compensation Fund is not only fair, but also addresses the "practical problem of inadvertent disclosure in the context of today's reality that document production may involve massive numbers of documents." Therefore, the court concluded that the disqualification was proper, because Johnson's use of the notes "undermined the defense experts' opinions and placed defendants at a great disadvantage."

The American Bar Association offers guidance for practitioners outside of California. In Formal Opinion 92-368, the ABA held that when a lawyer receives a fax that clearly has been sent inadvertently by opposing counsel, the receiving lawyer should refrain from reviewing the document, notify the sending lawyer, and abide by the sender's instructions. In 2005, the ABA withdrew Formal Opinion 92-368 because of the language contained in Model Rule 4.4(b) stating that if a lawyer receives a document relating to a representation and the lawyer knows or reasonably should know that the document was delivered inadvertently, the lawyer should inform the sender in a prompt manner. Careful readers will note that Rule 4.4(b) only obliges the receiving lawyer to notify the sender of the inadvertent transmission; it does not require the receiving lawyer to refrain from examining the transmission or to abide by the sender's instructions.

Thus, California requires more on the part of the receiving lawyer than does the ABA rule.

The general trend in states' laws on this issue is to hold that the attorney-client privilege is not waived by inadvertent disclosure if the lawyer and the client takereasonable precautions to guard against inadvertent disclosure. What constitutes "reasonable" depends on the circumstances, including the sensitivity of the information.

In our opinion, the safest course of action in the absence of direct state guidance would be for the recipient of the inadvertent disclosure to avoid reading the disclosure any more than necessary, to notify the sending attorney and then to inform the court. If the information disclosed is important enough, the recipient can ask the court for a ruling on whether attorney-client privilege has been waived by the disclosure. If the court says "yes," the recipient can take advantage of her opponent's mistake without worrying that she's violating any ethical rule or that she might be disqualified in the case.

For our part, carefully marking all our documents as "privileged" or "work product" may help keep opposing counsel from reading more than is necessary to determine that something has been inadvertently produced.

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