Business and attorneys involved in California litigation may be affected by a recent ruling by the California Supreme Court regarding an attorney’s obligations when receiving inadvertently disclosed information that is protected by the attorney-client privilege or the work product doctrine. In Rico v. Mitsubishi Motors Corp., 2007 WL 4335934 (Cal. 2007), the court ruled that when an attorney inadvertently receives privileged documents in discovery, the attorney “may not read a document any more closely than is necessary to ascertain that it is privileged.” Once that determination is made, the attorney is obligated to notify opposing counsel and try to resolve the situation. To do more than that will invite disqualification.
The issue arose after a Mitsubishi Montero rolled over while being driven on a freeway. Plaintiff, who was injured in the accident, sued Mitsubishi and the California Department of Transportation. Mitsubishi’s representatives met with their lawyers and two designated defense experts to discuss litigation strategies and vulnerabilities. Defendant’s attorney took notes at the meeting and had the notes typed up and printed. The printed copy was not labeled “confidential” or “work product.” A few weeks later, defendants’ attorney deposed one of plaintiff’s expert witnesses. Plaintiff’s counsel was late to the deposition, and while waiting, defendant’s attorney left the room, leaving his briefcase, computer, and case file. According to the court, “somehow,” plaintiff’s attorney acquired the printout of the notes taken by defendant’s attorney during the earlier strategy session. A week after acquiring the notes, plaintiff’s attorney used them in a deposition of a defense expert, asking about the witness’s participation in the strategy session. Mitsubishi then moved to disqualify plaintiff’s counsel.
The Supreme Court agreed with the trial court and the court of appeal that the motion to disqualify was property granted. The court found that the notes, which discussed strategy and trial preparation and reflected counsel’s opinions, were protected as attorney work product. Accordingly, the notes were absolutely protected from disclosure.
The court then addressed an attorney’s duty upon receipt of attorney work product. When privileged documents – either work product or material subject to the attorney-client privilege – are received inadvertently, an attorney “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 parties may then either resolve the issue themselves or seek guidance from the court. This rule protects the right of an attorney to prepare for trial with the necessary degree of privacy and prevents opposing counsel from taking undue advantage of their adversary’s efforts. In this case, plaintiff’s counsel acknowledged that after reviewing the document for a few moments, he realized it contained work product. The court noted, however, that such an admission is not necessary to apply the rule.
The court also concluded that disqualification was an appropriate remedy. The damage caused by plaintiff’s counsel reading and using the document could not be mitigated. The court determined that plaintiff’s counsel “also acted unethically by making full use of the document.” Plaintiff’s counsel contended that his use of the document was proper because it showed that the experts were not being truthful. The court rejected this argument, making it clear that the contents of the document were entirely irrelevant to enforcing the rule regarding advertent disclosure. “Once the court determines that the writing is absolutely privileged, the inquiry ends. Courts do not make exceptions based on the contents of the writing.” The decision in Rico establishes a bright-line rule for dealing with inadvertent disclosure.
Full Opinion Text: http://www.courtinfo.ca.gov/opinions/documents/S123808.PDF