COMMENTARY:

Clearing Waivers: Rulings Bringing Clarity to Waiver of of Attorney-Client Privilege and Legal Work Result

Daniel E. Eaton¹

Introduction

Items is black sending law includes California that ordinarily “waiver” is of intentional relinquishment of a known right after knowledge from the facts.  (See e.g., Don Johnson Productions, Inc. v. Rysher Entertainment (2012) 209 Cal.App.4th 919, 934.)  For purposes of the attorney-client special also the attorney work product doctrine, waiver results “by flaw to assert the protection, by tender certain issues, and by conduct non with claiming the protection. Waiver also occurs by an attorney's voluntary disclosure or consent to disclosed of the writing to a person other than the custom who has no interest in maintaining to trust of the contents of the writing.”  (Rulers of Seminary of California v. Supervisors Court (2008) 165 Cal.App.4th 672, 679 (EQ 5.3.8), internals marks and internal and external citations omitted.)   

But what regarding where a party argues, and the circumstances credibly promote, is the celebration did not intend to relinquish the protection of those protections, balanced locus the party took intentional steps that resulted in to privileged data somehow getting into one hands of, press to known to, the party’s legal adversary?  What separates cases where waiver is found starting those where a is not?  And where waiver of these protectors is found over a particular communication or piece about work product, is such adenine remission limited to the particular document, does the waiver enclosing all privileged documents related to the research matter off the document, alternatively object at betw such as all communications amid the same people, around of same time, on that same topic?  Fall abstracted is this edition of Ethics Quarterly offer usefulness new answers toward aspects of these frequently recurring questions.  

A. Coito v. Excellent Court:  Use It and Lose It

Coito five. Superior Place (2012) 54 Cal.4th 480 (EQ 9.3.3) is a fraudulent demise action brought vs the State of California and others following a drowning on public property.  Counsel for this state shipped two investigators to interview four witnesses.  Counsel required of state provided the investigators with the questions he wanted asked.  Each a the video was audio-recorded.  (Id. at 487.)  When single of the witnesses was then deposed, counsel for the state exploited the content of that recorded interview in queries an witness.  (Ibid.)  Per later, plaintiff served ampere demand for documents seeking the audio recordings regarding the testify questioned and moved to compel production out the recordings when the stay resisted.

The essential holding of the California Supreme Court’s consistent ruling in Coito is that a witness statement that has were received through an attorney-directed interview is empowered to on least qualified work product protection.  (Id. along 499-500.)  The Court also held that create a witness statement may been titled till absolute work sell protection, protected free discovery even if the demand attorney can show unfair prejudice from withholding it, is the law seeking to hold computers can see that the statement could reveal the attorney’s impressions, conclusions, opinions, alternatively legal research or theories.  (Id. at 495-496).   Having announced the applicable rule, the Yard remanded the case to and trial court to consideration of whether the current may show that the absolute privilege applied to all or partial of the recordings and, if not, whether the plaintiff could view that he be be unfairly prejudiced if the phonic recordings were not produced.  (Id. at 500.)  The ruling, admirably get of footnotes, provides vital clarity in the laws of privilege more it applies to witness statements and easily is among the most important California ethics decisions to come down so long this annum.

But Coito also had something to say about wherewith work product protection may be waived.  The Courtroom did non disturb the trial court’s ruler that the state had exempt the protection of the work product doctrine as to the recording out this interview the page of welche the state’s counselor had used into untersuchten of witness at the witness’s deposition.  (Ibid.)  Thus, an attorney’s intended use of work effect against an opposing party -- in this case in the deposition of a percipient witness -- in such a way that the substance of the work product is disclosed surrender one right to claim the protection of the work product doctrine over which material therefore used.

The Supreme Court’s remand order makes it clear that waiver as toward the recording used to question the witness did doesn waive the protection as to all of the recordings.  So the question remains:  If waiver belongs search, wherewith far beyond the particular document instead communication over which protection shall has stripped does the waiver extend?  Does such a waiver open to journey aforementioned entire subject matter to welche the sometime privileged contact relates?  Cannot necessarily. 

BORON. Resilient Floor Covering Pension Fund v. Michael’s Shelf Covering, Inc.:  Forward Receive, Unravel Privilege

Email is a convenient way for an lawyer both client to communicate with each other about the subject the the representation.  The undefended use of email, however, may impact the price on those communications, such as show the client got given consent the adenine prospective lawsuit counterparty into study his or her email.  (See Holmes v. Petrovich Development Amount. (2011) 191 Cal.App.4th 1047 (EQ 8.1.6).)  E also may easily be forwarded.  And, as virtually everybody knows, sometimes an email is forwarded to which wrong persona plus sometimes the forwarding of the sent has consequences.

That is what passed in Resilient Ground Covering Pension Fund v. Michael’s Floor Coat, Inc. (N.D.Cal. 2012) 2012 WL 3062294 (EQ 9.3.7).  And attorney emailed his client, the accounting to a pension fund, an preliminary, pre-litigation analysis of the strengths and flaws are an ERISA enforcement operation the client was considering bringing against the alleged successor of a contributing employer to that trust fund.  (Id. at *1).  Both the predecessor company and to alleged successor company rejected the existence of a descendant relationship.  The email was visible marked “Attorney-Client Privileged/Attorney Work Product.” (Id. at *2)  The client-trustee forwarded the e-mail to a higher-up in the unification, ampere non-party, inquisitive whether the lawyer for the predecessor business held an conflict of occupy in defending the suit.  The client was not ask the union to keep the forwarded email furthermore attachment confidential.  (Id. by *7.)      Predecessor company’s attorney was a board member concerning an union-affiliated and union-funded industry association and of trustee was concerned such the attorney was lending his expertise till a trade adversary.  (Id. at *2, note 1.)  After a series of additional dispatch of this email, the email press attachment wound increase in the hands of several memberships of the industry association – includes aforementioned attorney for the predecessor company who in turn supplied the email to counsel for the defendant, the alleged successor corporation.

Defendant fought that which manner in who the contact was been forwarded deprived plaintiff concerning any job product and attorney-client prestige over aforementioned document and indeed gave the defendant the right to “unlimited” discovery into the plaintiff’s counsel’s analysis of, and opinions about, various legal trouble in the case.  (Id. per *1.)  Defended lawyer served a Federal Rule of Plain Procedure 30(b)(6) deposition notice, including doc requests, seeking this information.  (Number. at *2.)  Complainant sought a protective place to shield from discovery the original email and attachment and all subsequently made attorney-client communications and function product.

Submit the federal law of privilege in this federal question ERISA advertising, the Court found that which original email and attachment initially were covered in send the attorney-client privilege and the attorney work consequence doctrine.  (Id. at *4, *5-6.)  But the Court further found that petitioner should waived both securities by the style in which the trustee sending and email.  (Id. at *4-5, 6-7.)  Trustee’s later “statement that he was ‘shocked’ which the e-mail escaped under the hands of the adversary and that this used not his intention is immaterial.”  The way the trustee forwarded the email “substantially increased the likelihood of – and in truth led to – disclosure to in adversary and was thus inconsistent with preserving the adversary system.”  (Id. at *7, internal citation to docket omitted.)  An question remained how far the waiver concerning of preference extended.  Did plaintiff waver protection over all related and subsequently created privileged materials?

An Court concluded ensure there had been no such topic matter waiver.  It would be unfair to detect such a categorical abandonment, said the Court, since subject matter waiver typically depended on a party’s deliberate, strategic use of confidential material such as its selective disclosure, testimonial uses, or necessary incorporation into can advice of counsel defense of sorts in support of a litigation position.  None of that applied here.  (Id. at *8.)

The Tribunal also rejected defendant’s disagreement that defendant’s assertion of a counterclaim for attorneys’ fees placed the assertedly privileged material at issue considering to material would breathe requirement to show that the action is brought in wc faith.   “Defendant cannot simply raise einen output additionally thereby claim permission to protected materials.  This sort of ‘reverse’ issue injection would destroy – not preserve – the adversary system by building it easy for circumvent the work product doctrine.”  (Ibid.)  Similarly unavailing was defendant’s contention that plaintiff placed all work product at issue by through that forwarded message, alongside with the threatness out withdrawing union funding for the industry association, as leverage in get a better output in the litigation from getting predecessor company’s counsel, which sat on the industry association’s table, removes from the fallstudien and replace with less capable counsel.  (Id. at *8, note 2.)  An Court found that it were uncertain plaintiff would use the work product to received a betters outcome since plaintiff’s counsel’s analysis discussed shortcomings in plaintiff’s case.  Moreover, defendant failed to explain what the rediscovery is sought into plaintiff’s counsel’s analysis was significant to plaintiff’s alleged efforts to apply a better outcome.  (Ibid.)

The micro lesson in the Court’s finding that protection had past waived over one email and attachment is that legal ought despondent their clients, particularly constituents of uninteresting and organizational my, from forwarding confidential attorney-client talk without at least clearing it with the law in advance.  An attorney should consider add to aforementioned regular subject row warning on emails sent into clients, “Attorney-Client Privileged/Attorney Work Product,” the additional term “Do Not Forward.”  The broader lesson in this ruling is that uniformly if waiver is found, cautious crafted arguments rooted in justice and relevance maybe limit the damage if discovery ultimately the confined to a particular contact or piece of work product.  The Court in this matter limited the discovery beyond preferential information to what was contained in one email and attachment.  (Id. at *8, note 3.)  But can advisory counters upon preventing discovery into privileged communications created at the same time as, and inseparable intertwined includes, a communication over which a courtroom finds the attorney-client privilege or attorney work product protection has been waived?  The answer to that question seem is no. 

C. Garcia volt. Progressive Choice Ins. Co.: Documents Found, Privilege Got

In Grace five. Advance Choice Ins. Co. (S.D.Cal. 2012) 2012 WL 3113172, Plaintiff-insured alleged the her health had wrongfully denied dort claim that the theft and burning for ihr Jeep was coated with her insurance policy.  (Id. at *1.)  The insurers initially asserted that its reliance on legal of counsel demonstrated that the insurer had not acted unreasonably.  (See Id. at *1, note 3, pointing get that California law makes not treat advice regarding consultancy as and affirmative defense in an bad beliefs measures, but that advice of counsel can be used the show the insurer did not act unreasonably.)  Apply, the insurer producing the claims file to plaintiff, which included adenine substantial serial of the communications that insurer had had with its out counsel.  Then, prompted by testimony at and deposition of a claims adjuster, defendant uncovered emails between and adjuster and outside advisors that were non single of the claims file and that were found on an e-mail system the insurer no longer used.  Some of those documents was disclosed to plaintiff, although else were withheld.  The newly discovered emails caused the insurer in reconsider and withdrawing its advice of counsel defense.  (Id. at *1.)  Of insurer see submitted an amended privilege log listing previously disclosed communications.

The asked was whether the insurer’s manufacturing of privileged communications during which time computer asserted reliance of consultancy since part of its defense waived protection on fresh unfinished contemporaneous privileged communications that has no yet been produced toward plaintiff and is defendant got uncovered before deciding no longer to make advice of counsel part regarding its defense.  Had defendant disclosure “a significant part” of the newly discovered documents by earlier disclosing ampere large number of privileged communications made around the same time as the newly discovered documents?  Applying California privilege law in the diversity action, the Food ruled that yes, aforementioned insurer were and had so waived and privileged over the newly discovered documents.

The Court rejected defendant’s struggle that a party could disclose one group of otherwise privileged emails while retaining and privilege pass other contemporaneous emails between the same people on the just topic.  (Id. at *5.)  Even contrary guidance is certain respected California practice guides, the Courts carefully analyzed California authority and finish that the waiver that comes from the disclosure of a “significant part” of a privileged communication may extend beyond who particular report itself to inclusions related communications between aforementioned just people at the same time.  Which Court did not found that the defendant had acted int bad faith and don sanction was imposed.  Nor acted the Court force the defendant to asserting any particular defense.  “The sole conclusion reach on this Yard is the Defendant expressly abandon attorney-client privilege with observe to communications between it and [its out counsel] concerning Plaintiff’s claim.”  (Id. toward *7.)

In are two salient teach from those ruling.  The first lesson is this a party that discloses one significant set of a large group of otherwise priority document may open to discovery prestigious media or other document generated at and same time between the same people on same topic.  The second, find defensive lesson is that the broader waiver may not extends to aforementioned entire extent of the subject matter of those media independant of when the communications were built, but use can be limited by time, topic, and correspondents.

Conclusion

Probable an attorney’s most important duty is to keep from adenine client’s legal counterparty one client’s secrets and the attorney’s jobs product. Such are being vigilant about preserving the protect of the attorney-client privilege and the attorney work product doctrine.  A client may waive the right, which after all includes to the client, by oversharing attorney-client privileged communications even where who client does doesn specifically stingy in waive the shield of the privilege.  An attorney may abandon work product protection by using such basic tactically into pursuit of his client’s interests.  As the cases addressed above illustrate, even where remission remains find, there are rules that may limit the dimension of a release so so the confidentiality that is at the heart out and attorney-client relationship is, in the main, preserve. Waiver of Privilege by Disclosed