Los Angeles E-Discovery Lawyer & Attorney : McBride Law Firm : Electronic Evidence: Santa Monica, California

In Rico v. Mitsubishi Motors Corp., (2007) 42 Cal.4th 807, the California Supreme Court recognized an affirmative duty of counsel who receive inadvertent productions that are obviously identifiable as confidential or privileged:

When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials 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 proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.

 

This is a critical requirement for counsel who receive productions that appear to be inadvertent and obviously privileged. 

It is also important to anticipate how this affirmative duty to return obviously privileged documents may be affected by the proposed California Rules governing electronic discovery currently under consideration by the California Judicial Counsel.

 Opinion Highlights:

 1.  The trial court ruled that plaintiff's counsel, Johnson, came into possession of notes taken at the direction of defense counsel, Yukevich, by inadvertence. 

2.  Johnson admitted that he knew within "a minute or two" that Yukevich did not intend to produce the document and that it would be a "powerful impeachment document."

3.  Johnson thereafter gave copies to his co-counsel and to his experts, all of whom studied the document.  Johnson specifically discussed the contents of the document with each expert.

4.  The trial court concluded that the notes were absolutely privileged by the work product rule, and 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 defense counsel that he had a copy of the document and by surreptitiously using it to gain maximum adversarial value from it.

6.  There is no distinction between the attorney-client privilege and the work product privilege in this context because the standard applies to documents that are plainly privileged and confidential regardless of whether they are privileged under the attorney-client privilege, the work product privilege, or any other similar doctrine that would preclude discovery based on the confidential nature of the document.

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