Review and Use of Inadvertently-Produced Privileged Materials — Multiple Disqualifications

Disqualification is contagious. On December 13, 2007, the California Supreme Court upheld disqualification of the attorneys and experts for the plaintiff in RICO v. Mitsubishi Motors Corp, No. S123808, 2007 Cal. LEXIS 13892 (Cal. Dec. 13, 2007) because plaintiffs’ counsel reviewed, used (in deposition) and shared with plaintiffs’ experts a document containing the mental impressions and work product of defense counsel. Plaintiffs’ counsel maintained that the document was given to him by the court reporter during the course of a day-long deposition. Even though the document was not marked as privileged or confidential, plaintiffs’ counsel admitted that he realized within a minute or two that the document had been prepared by the defense, related to the case and that opposing counsel did not intend to reveal it. The California Supreme Court held that a lawyer

may not read a document any more closely than is necessary to ascertain that it is privileged. Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation.

The Court rejected the attempt of plaintiffs’ counsel to justify using the document on cross-examination of defense experts “by accusing the defense experts of giving false testimony” as insufficient to overcome the privilege. The Court rejected the crime-fraud exception on the California-specific ground that the exception applies only in an official agency investigation or action brought by a public prosecutor. The crime-fraud exception, though, is an exception to the privilege rules; query as to its impact, if any, on ethical obligations.

The document in question in Rico summarized a meeting between defense counsel and defense experts. It was prepared at behest of counsel. He then annotated it. There is, unfortunately, something of an open question in federal court as to whether such a document might be discoverable given the severe damage that the 1993 amendment to Fed.R.Civ.P. 26(a)(2)(B) has done to privilege and work product vis-à-vis experts in federal court (if, for example, the defense experts had no notes of the meeting and disclaimed any recollection of it.

Query whether the practical upshot is the same in jurisdictions like the D.C. Circuit that hold that any production of a privileged document effects a waiver even an inadvertent production that occurs despite vigilant efforts to prevent it.

Thanks to Jim Brosnahan of San Francisco for bringing this case to my attention.

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