Thursday, December 13, 2007

What Do You Do If Opposing Counsel Inadvertently Produces a Privileged Document?

As Soon As You Realize What It Is - Stop Reading. Then Give It Back. Right Away.

Rico v. Mitsubishi Motors Corporation (Dec. 13, 2007, S123808)
16 p. opinion

42 Cal.4th 807

The rule that the Supreme Court sets forth in this decision is not a complicated one. If a lawyer receives a document that clearly appears to be privileged and it is "reasonably apparent that the materials were provided or made available through inadvertence," he or she should examine the document no further than is essential to determine that the document is privileged. Then he or she should immediately notify the sender of the situation so that the parties can either resolve it by agreement or turn to the court for any justified judicial intervention.

This approach protects the attorney-client privilege and the work product doctrine, prevents large document productions from becoming slower and more laborious than they already are, and fulfills the attorney's obligations to the bar, the judiciary and the administration of justice.

What shouldn't the lawyer do if he realizes after a minute or two that he is reading a work product document? He shouldn't make multiple copies of it and give them to his co-counsel and experts. He shouldn't discuss the contents of the document with each of his experts. He shouldn't use the document to impeach one of the opposing parties' experts during that expert's deposition.

What happens if he does? In this case the attorney showing such poor judgment represented the plaintiffs. As a result of his unethical behavior, the plaintiffs' attorneys and experts were disqualified.

(The plaintiffs, because they had not been told the contents of the document, were given time to obtain new counsel. This contrasts with the result for the plaintiffs in Stephen Slesinger, Inc. v. The Walt Disney Company whose intimate knowledge of the contents of illegally obtained documents tainted their case beyond repair.)

What if the lawyer is slow to realize that the document is privileged? That's a shame but not an excuse. The rule establishes an objective standard under which the court must decide when reasonably competent counsel would have realized the document was privileged.

Justice Corrigan wrote the opinion for a unanimous court.

1 comment:

Greg May said...

I can see the arguments for this approach, but it's not a foregone conclusion. Around 15 years ago, I was researching a similar issue in federal court. If memory serves, the federal courts are (or at least were) far harsher on the party producing the docs. If there were indicia that the producing party was simply sloppy, the producing party was stuck and had no right to return of the privileged docs.