Tucker Ellis v. Super. Ct. ( 2017 )

Filed 6/21/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
TUCKER ELLIS LLP,
Petitioner,
v.
THE SUPERIOR COURT OF CITY A148956
AND COUNTY OF SAN FRANCISCO,
(City and County of San Francisco
Respondent; Super. Ct. No. CGC-13-535453)
EVAN C. NELSON,
Real Party in Interest.
In this writ proceeding, we are presented with a narrow question of law concerning
the attorney work product privilege as codified in Code of Civil Procedure Section
2018.030.1 Specifically, we are asked to determine, as between an employer law firm
and a former attorney employee, who is the holder of the attorney work product privilege
that attaches to documents created by the attorney employee during and in the scope of
his employment? We conclude that under the circumstances of this case, the holder of
the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP
(Tucker Ellis), and not the former attorney employee, real party in interest Evan C.
Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because
1
All further unspecified statutory references are to the Code of Civil Procedure. “In
published opinions, the California courts have referred to attorney work product
protections as a ‘doctrine’ [citation] and as a ‘privilege’ [citation]. Section 2018.080
refers to the ‘work product privilege.’ Whether attorney work product is protected under
a ‘doctrine’ or a ‘privilege,’ it is clearly protected by statute.” (Meza v. H. Muehlstein &
Co., Inc. (2009) 176 Cal. App. 4th 969, 981, fn. 4.)
1
Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to
secure Nelson’s permission before it disclosed to others documents he created during and
in the scope of his employment. Because respondent court held to the contrary, finding
that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents
were not disclosed without Nelson’s permission, we shall issue a peremptory writ of
mandate directing respondent court to vacate its July 19, 2016, summary adjudication
order, and enter a new order consistent with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
Nelson is a California attorney specializing in asbestos defense, and was employed
by Tucker Ellis as a trial attorney in the firm’s Mass Tort & Product Liability Practice
Group in San Francisco beginning in November of 2007. In late 2009, Nelson was
promoted to the position of “non-capital partner,” a position he held until November of
2011, when he left Tucker Ellis to join a competing law firm in the same practice area.
When Nelson joined Tucker Ellis, he signed an employment agreement, stating
that he “agree[d] to conform to the rules, regulations and policies of the Firm.” During
Nelson’s employment, Tucker Ellis also provided employees with a Non-Partner
Attorney Personnel Handbook, which stated, “[a]ll records and files maintained by
Tucker Ellis & West LLP” were “the property of Tucker Ellis & West LLP,” and “[a]ll
documents, including email and voice mail, received, created or modified by any attorney
are the property of Tucker Ellis & West LLP.” The 2007 Tucker Ellis & West LLP
Practice Policy Manual similarly provided that, “Firm provided Technology Systems are
Firm property.”
As part of his employment, Nelson worked with a group of scientific consulting
experts at the Gradient Corporation (Gradient). Gradient was retained by Tucker Ellis to
assist in litigation for a Tucker Ellis client. In 2008, Nelson exchanged a series of emails
with Gradient consultants about medical research articles relating to smoking and/or
radiation (rather than asbestos) as causes of mesothelioma (hereinafter also referred to as
“attorney work product emails”). Around the same time, Tucker Ellis entered into an
agreement with Gradient to research existing scientific studies on the causes of
2
mesothelioma, and summarize them in a published review article that was ultimately
titled “Ionizing radiation: a risk factor for mesothelioma.”
In September of 2011, while Nelson was still employed at Tucker Ellis, the law
firm was contacted by counsel of record in Durham v. General Electric Co., et al.
(Durham), a litigation matter pending in Kentucky. Durham counsel advised that Tucker
Ellis would be served with a subpoena seeking documents related to payments made by
Tucker Ellis to Gradient to fund medical research articles and communications between
Tucker Ellis and Gradient regarding such articles. Tucker Ellis’s managing partner
discussed the anticipated subpoena with Nelson, albeit the parties disagree about the
contents of those conversations.
After Nelson left Tucker Ellis, the law firm was served with the anticipated
subpoena issued in Ohio pursuant to an out-of-state commission in the Durham case.
The subpoena sought, in pertinent part, the production of “[a]ny and all emails, letters or
other communications between Tucker, Ellis & West LLP and Goodman, Gradient or
Exponent regarding the research or publication” of “any literature or studies related to
mesothelioma, asbestos or radiation-induced mesothelioma” funded by Tucker Ellis,
including the noted published review article. Tucker Ellis reviewed the subpoena and
withheld certain documents on the basis of attorney-client and the attorney work product
privileges. Ultimately, Tucker Ellis produced the attorney work product emails authored
by Nelson, which are the subject of this litigation. After Nelson was subpoenaed for
deposition, he wrote a “clawback” letter to Tucker Ellis and Durham counsel, asserting
the emails contained his privileged attorney work product and demanding they be
sequestered and returned to him. Tucker Ellis did not respond to Nelson’s letter.
Nelson filed this lawsuit against Tucker Ellis, alleging claims for negligence,
negligent and intentional interference with contract, negligent and intentional interference
with prospective economic advantage, intentional invasion of privacy, and conversion.
Nelson asserted that as a result of Tucker Ellis’s production of his emails, his attorney
work product was made available on the internet and disseminated to over 50 asbestos
plaintiffs’ attorneys, interfering with his ability to work effectively with experts in the
3
asbestos field, and ultimately resulting in his termination from his new law firm and an
inability to find new employment in his practice field.
Tucker Ellis moved to compel arbitration of Nelson’s claims pursuant to an
arbitration clause in Nelson’s employment agreement. Respondent court denied the
motion, concluding the arbitration clause was procedurally and substantively
unconscionable under California law. Tucker Ellis appealed, and we affirmed. (Nelson v.
Tucker Ellis LLP (December 15, 2014 A141121) 2014 Cal. App. Unpub. LEXIS 8971
(Nelson I).) In the course of discussing whether the arbitration clause was substantively
unconscionable, we stated the following:
“Despite Tucker Ellis’s arguments to the contrary, we conclude the nature of the
right Nelson seeks to vindicate by his lawsuit is ‘legally indistinguishable from the nature
of the rights discussed in [Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal. 4th 83 and Little v. Auto Stiegler, Inc. (2003) 29 Cal. 4th 1064].’ [Citation.]
The cause of action for an alleged intentional invasion of privacy through public
disclosure of private information is tethered to both the constitutional right of privacy
[citations] as recognized by the trial court, and the public policy articulated in Code of
Civil Procedure sections 2018.020 and 2018.030 that writings, which reflect an attorney’s
impressions, conclusions, opinions, or legal research or theories, are not discoverable
under any circumstances [citation]. Because Tucker Ellis could not ask Nelson to waive
his attorney work product privilege as a condition of his employment, the law firm also
‘cannot impose on the arbitration of [his] claim[ ] such burdens or procedural
shortcomings as to preclude [its] vindication.’ [Citation.]” (Nelson I, supra, at p. *16-
17.)
Tucker Ellis then filed a special motion to strike the complaint as a strategic
lawsuit against public participation pursuant to section 425.16 (the anti-SLAPP statute),
and respondent court denied the motion. Tucker Ellis again appealed, and we affirmed.
(Nelson v. Tucker Ellis LLP (November 24, 2015 A142731) 2015 Cal. App. Unpub.
LEXIS 8561 (Nelson II).) In the course of discussing whether Tucker Ellis had
4
demonstrated that the challenged causes of action arose from protected activity, we stated
the following:
“By his lawsuit, Nelson seeks relief based on an overarching claim that Tucker
Ellis breached an independent legal duty it owed to Nelson regarding the nondisclosure
of his privileged attorney work product. . . . And, as pertinent to our discussion, ‘the
custodian of materials protected by an evidentiary privilege owes a duty to the holder of
the privilege to claim the privilege and to take actions necessary to ensure that the
materials are not disclosed improperly.’ [Citations.] [¶] Thus, contrary to Tucker Ellis’s
argument, the significance of the factual allegations relating to Tucker Ellis’s response to
a subpoena is to demonstrate that Tucker Ellis, as custodian of privileged attorney work
product, breached a separate independent legal duty owed to Nelson ‘to take appropriate
steps to protect [his interest as] . . . the privilege holder[ ] in not disclosing the materials
to . . . others.’ (People v. Superior Court (Laff)[(2001) 25 Cal. 4th 703,] 713.) ‘This
dispute, and not any protected activity, is “the gravamen or principal thrust” of the action.
(Martinez v. Metabolife Internat., Inc. (2003) 113 Cal. App. 4th 181, 193 [6 Cal. Rptr. 3d
494].) The additional fact that protected activity [response to a subpoena] may lurk in the
background—and may explain why the rift between the parties arose in the first place—
does not transform [this action] into a SLAPP suit.’ [Citations.]” (Nelson II, supra, at
pp. *7-10, fn. omitted.) 2
Following discovery, Nelson filed a motion for summary adjudication, seeking a
determination that Tucker Ellis had a legal duty to protect his attorney work product from
improper disclosure to third parties pursuant to section 2018.030. Tucker Ellis opposed
2
We do not agree with Nelson’s suggestion that our decision in Nelson II
establishes the law of the case as to whether Tucker Ellis did or did not owe a duty to
Nelson concerning the release of certain documents allegedly containing attorney work
product created by him while he was employed at Tucker Ellis. Our opinion in Nelson II
merely describes Nelson’s theory of liability for the limited purpose of determining
whether the complaint was subject to dismissal under the anti-SLAPP statute. (See
Nelson II, supra, at p.*11 [“[w]hether Nelson will be able to demonstrate that Tucker
Ellis engaged in conduct for which he is entitled to relief is not before us and will be
resolved in further proceedings”].)
5
the motion, arguing Nelson was not the holder of the attorney work product privilege
under section 2018.030. Rather, Nelson’s work product, created while an employee of
the law firm, was owned by Tucker Ellis under Labor Code section 2860. As the owner
of the work product created by Nelson, Tucker Ellis claimed it held the exclusive right to
assert and waive the privilege afforded under section 2018.030, without Nelson’s
consent. Finding Labor Code section 2860 inapplicable, respondent court ruled, “Tucker
Ellis LLP owed Plaintiff Evan C. Nelson a legal duty to take appropriate steps to ensure
that work product created by Plaintiff which contains his impressions, conclusions and
opinions and in [Tucker Ellis’s] possession was not disclosed to others without Plaintiff’s
permission.”
Tucker Ellis filed its petition for a writ of mandate in this court, challenging
respondent court’s summary adjudication ruling on the issue of duty. We requested
informal briefing, and gave notice, pursuant to section 1088 and Palma v. U.S. Industrial
Fasteners, Inc. (1984) 36 Cal. 3d 171, 180, that, we might choose to act by issuing a
peremptory writ in the first instance. After receipt of informal briefing, we temporarily
stayed the trial in respondent court and issued an order to show cause, scheduling dates
for the filing of a formal return and a formal traverse. Tucker Ellis filed a formal return
and Nelson filed a formal traverse. We have reviewed the parties written pleadings, the
record, and had the benefit of oral argument. For the reasons stated below, we now
conclude Tucker Ellis is entitled to writ relief.
DISCUSSION
I.
Appropriateness of Writ Relief
An order granting partial summary judgment—or summary adjudication—is not
an appealable order. However, under certain circumstances, mandate may be granted to
review an order granting summary adjudication. (See Field Research Corp. v. Superior
Court (1969) 71 Cal. 2d 110, 111; Mason v. Superior Court (1985) 163 Cal. App. 3d 989,
994.) In particular, a writ of mandate may issue to prevent trial of non-actionable claims
after an erroneous decision on a motion for summary adjudication. (See Arnall v.
6
Superior Court (2010) 190 Cal. App. 4th 360, 364; Travelers Casualty & Surety Co. v.
Superior Court (1998) 63 Cal. App. 4th 1440, 1450.) Since a motion for summary
adjudication “involves pure matters of law,” we review the trial court’s ruling de novo.
(See Addy v. Bliss & Glennon (1996) 44 Cal. App. 4th 205, 214; Saldana v. Globe–Weis
Systems Co. (1991) 233 Cal. App. 3d 1505, 1514.)
II.
Labor Code Section 2860 Does Not Determine Who is the Holder of Attorney Work
Product Privilege Under Section 2018.030
Tucker Ellis asserts this dispute “boils down” to the issue of the ownership of
Nelson’s work product created while he was an employee of the law firm. According to
Tucker Ellis, a finding that Nelson did not own the work product he created while
employed by Tucker Ellis precludes any determination that the law firm owed him a duty
of care. Therefore, the law firm was entitled to disclose Nelson’s work product without
his permission. In support of its claim it is the sole owner of the work product created by
Nelson, Tucker Ellis relies on Labor Code section 2860, which provides: “Everything
which an employee acquires by virtue of his employment, except the compensation
which is due to him from his employer, belongs to the employer, whether acquired
lawfully or unlawfully, or during or after the expiration of the term of his employment.”
(See Lugosi v. Universal Pictures (1979) 25 Cal. 3d 813, 826-27 [“where an employee
creates something as part of his duties under his employment, the thing created is the
property of his employer”]; Zahler v. Columbia Pictures Corp. (1960) 180 Cal. App. 2d
582, 589 [accord].) Tucker Ellis also argues that its claim of sole ownership is supported
by several employment documents applicable to Nelson’s employment. For example, the
Tucker Ellis Non-Partner Attorney Personnel Handbook provides that “[a]ll records and
files maintained by Tucker Ellis & West LLP” were “the property of Tucker Ellis & West
LLP,” that Nelson had no “reasonable expectation of privacy with respect to his” firm
emails, and that “[a]ll documents, including email and voice mail, received, created or
modified by any attorney are the property of Tucker Ellis & West LLP.” The 2007
7
Tucker Ellis & West LLP Practice Policy Manual similarly provided that “Firm provided
Technology Systems Are Firm property.”
Our review of Labor Code 2860 and the cases construing the scope of that statute,
as well as the employment agreement and other policies in effect during Nelson’s
employment, leads us to conclude that Tucker Ellis owned the documents in question.
However, the dispositive issue here is who is the holder of the section 2018.030 attorney
work product privilege, which attaches to and seeks to protect the information reflected in
the documents in question. As we noted in considering Tucker Ellis’s anti-SLAPP
motion (Nelson II, supra, at pp. *8-9), an attorney can assert his work product privilege
even though he is no longer in possession the document (see OXY Resources California,
LLC v. Superior Court (2004) 115 Cal. App. 4th 874, 901), and the contents of the
documents may have been communicated to the client (see BP Alaska Exploration, Inc. v.
Superior Court (1988) 199 Cal. App. 3d 1240, 1260 (BP Alaska Exploration)). This is
consistent with the policy to be served by the privilege: “The recognition of an attorney’s
right to assert a work product protection [even if the document is no longer in the
attorney’s possession] strengthens the attorney-client relationship by enabling the
attorney to evaluate his client’s case and to communicate his opinions to the client
without fear that his opinions and his theories will thereafter be exposed to the opposing
party or to the public in general for criticism and ridicule.” (Ibid.) We therefore decline
Tucker Ellis’s invitation to find that ownership of the documents in question, standing
alone, answers the question before us: whether the law firm or Nelson is the holder of the
section 2018.030 attorney work product privilege under the circumstances we confront
here. Nonetheless, as we now explain, we conclude Tucker Ellis is the holder of the
section 2018.030 attorney work product privilege that attached to the documents created
by Nelson during and in the scope of his employment. Because Tucker Ellis is the holder
of the privilege, it necessarily follows that the law firm had no legal duty to secure
Nelson’s permission before disclosing the documents to others.
8
III.
Law Firm Employer is Holder of Section 2018.030 Attorney Work Product Privilege
It is well settled that “[t]he meaning and construction of a statute is a question of
law, which we decide independently. [Citation.] We are required to harmonize the
various parts of the statutory enactment by considering the particular section in the
context of the statutory framework as a whole. [Citation.] Ordinarily, the words of the
statute provide the most reliable indication of legislative intent. [Citation.] However, a
statute’s literal terms will not be given effect if to do so would yield an unreasonable or
mischievous result. [Citation.]” (B.H. v. County of San Bernardino (2015) 62 Cal. 4th
168, 189.)
“California’s civil work product privilege is codified in section 2018.030.
Subdivision (a) provides absolute protection to any ‘writing that reflects an attorney’s
impressions, conclusions, opinions, or legal research or theories.’ (§ 2018.030, subd.
(a).) Such a writing ‘is not discoverable under any circumstances.’ (Ibid.) The term
‘writing’ includes any form of recorded information, including [transmitting by electronic
mail or facsimile, and any record thereby created, regardless of the manner in which the
record has been stored]. (§ 2016.020, subd. (c) [adopting the definition set forth in Evid.
Code, § 250].)” (Coito v. Superior Court (2012) 54 Cal. 4th 480, 488 (Coito).) 3
As explained by our Supreme Court, “[t]he idea that an attorney’s work product
should receive protection from discovery was first recognized by the United States
3
As observed by one court, “the closest we can come to a ‘workable’ definition of
work product under the statute is to say that it is ‘the product of [the attorney’s] effort,
research and thought in the preparation of his client’s case. It includes the results of his
own work and the work of those employed by him or for him by his client, in investigating
both the favorable and unfavorable aspects of the case, the information thus assembled,
and the legal theories and plan of strategy developed by the attorney – all as reflected in
interviews, statements, memoranda, correspondence, briefs, and any other writings
reflecting the attorney’s “impressions, conclusions, opinions, or legal research or
theories,” and in countless other tangible and intangible ways.’ ” (BP Alaska
Exploration, supra, 199 Cal.App.3d at pp. 1253-1254, fn. 4, first italics added, second
italics added by BP Alaska Exploration, quoting from McCoy, California Civil
Discovery: Work Product of Attorneys (1966) 18 Stan. L. Rev. 783, 797.)
9
Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495 . . . (Hickman). There, the
defendant’s counsel interviewed and took statements from the surviving crewmembers of
a tugboat accident. (Id. at p. 498.) The plaintiff sought the production of any written or
oral statements taken from the crewmembers. (Id. at pp. 498-499.) After concluding that
the statements were not covered by the attorney-client privilege (id. at p. 508), the court
nonetheless affirmed the denial of the plaintiff’s request. The court explained that the
plaintiff’s request was ‘simply an attempt, without purported necessity or justification, to
secure written statements, private memoranda and personal recollections prepared or
formed by an adverse party’s counsel in the course of his legal duties.’ (Id. at p. 510.) [¶]
The court continued: ‘In performing his various duties, . . . it is essential that a lawyer
work with a certain degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel. Proper preparation of a client’s case demands that he assemble
information, sift what he considers to be the relevant from the irrelevant facts, prepare his
legal theories and plan his strategy without undue and needless interference. That is the
historical and the necessary way in which lawyers act within the framework of our
system of jurisprudence to promote justice and to protect their clients’ interests. This
work is reflected, of course, in interviews, statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs, and countless other tangible and intangible
ways—aptly though roughly termed by the Circuit Court of Appeals in this case as the
“work product of the lawyer.” Were such materials open to opposing counsel on mere
demand, much of what is now put down in writing would remain unwritten. An
attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness
and sharp practices would inevitably develop in the giving of legal advice and in the
preparation of cases for trial. The effect on the legal profession would be demoralizing.
And the interests of the clients and the cause of justice would be poorly served. [’] ”
(Coito, supra, 54 Cal.4th at pp. 489-490.)
In response to Hickman, and, later California cases interpreting Hickman, our
Legislature codified an attorney work product privilege in section 2018.010 et seq.
“[T]he current text is virtually identical to the version first enacted in 1963. Section
10
2018.020 declares: ‘It is the policy of the state to do both of the following: [¶] (a)
Preserve the rights of attorneys to prepare cases for trial with that degree of privacy
necessary to encourage them to prepare their cases thoroughly and to investigate not only
the favorable but the unfavorable aspects of those cases. [¶](b) Prevent attorneys from
taking undue advantage of their adversary’s industry and efforts.’ Toward that end,
section 2018.030 provides: ‘(a) A writing that reflects an attorney’s impressions,
conclusions, opinions, or legal research or theories is not discoverable under any
circumstances. [¶] (b) The work product of an attorney, other than a writing described in
subdivision (a), is not discoverable unless the court determines that denial of discovery
will unfairly prejudice the party seeking discovery in preparing that party’s claim or
defense or will result in an injustice.’ ” (Coito, supra, 54 Cal.4th at pp. 493-494.) Thus,
the attorney work product privilege “recognizes what is termed an ‘absolute’ privilege as
to writings containing the attorney’s impressions, opinions, legal research and theories
and recognizes a ‘qualified’ privilege as to all written materials and oral information not
reflecting the attorney’s legal thoughts.” (Lasky, Haas, Cohler & Munter v. Superior
Court (1985) 172 Cal. App. 3d 264, 271 (Lasky), citing to Fellows v. Superior Court
(1980) 108 Cal. App. 3d 55, 68 (Fellows), disapproved in part on another ground in Coito,
supra, 54 Cal.4th at p.499.) 4
Initially, we acknowledge, as do the parties, that the plain text of section 2018.030
does not answer the narrow question before us because the statute “is silent as to who is
the holder of the privilege.” (Lasky, supra, 172 Cal.App.3d at p. 271.) Nelson contends
that cases interpreting section 2018.030 have construed it to mean that the attorney who
created the work product is the holder of the privilege. (Id. at p. 278 [trustee’s attorney
4
There are statutory exceptions to the attorney work product privilege but they are
not at issue in this case. (See §§ 2018.050 [work product enabling commission of crimes
not protected in official investigations], 2018.080 [“[i]n an action between an attorney
and a client or a former client of the attorney, no work product privilege under this
chapter exists if the work product is relevant to an issue of breach by the attorney of a
duty to the client arising out of the attorney-client relationship”].)
11
“is the sole holder of the privilege and may effectively assert it even as against a client”];
see Fellows, supra, 108 Cal.App.3d at p. 64 [client in possession of attorney work
product may assert privilege in attorney’s absence]; Lohman v. Superior Court (1978) 81
Cal. App. 3d 90, 101 [plaintiff could not invoke attorney work product privilege to
suppress answers given by plaintiff’s former attorney in deposition because attorney is
holder of the privilege].) Nelson also draws support for his contention that he is the
holder of the privilege from case law espousing that the Legislature’s intent in enacting
section 2018.030 was to protect the attorney who created the work product. (See
American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal. App. 3d 579, 594 [“the
work product rule is designed to satisfy the attorney’s requirement for privacy”]; Kerns
Constr. Co. v. Superior Court (1968) 266 Cal. App. 2d 405, 411 [“[i]f, as claimed, the
reports were privileged under the work product rule, the privilege rested with the
attorney”].) We have no quarrel with the case law cited by Nelson, but find that Lasky
and cases similar to it, while helpful, are inapposite to the situation we confront
here - whether the “attorney” who holds the privilege is the attorney employee who
created the work product or his law firm employer. To resolve this ambiguity, we
consider the statute’s purpose, and the public policy to be served by the privilege. (See
Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal. 4th 733,
737.) Our analysis leads us to the view that interpreting the term “attorney,” under
section 2018.030, to mean Tucker Ellis, and not Nelson, is consistent with the statute’s
purpose and legislative intent, as well as the public policy to be served by the attorney
work product privilege.
We note at the outset that the primary purpose of the privilege is to encourage
attorneys to honestly and objectively evaluate cases by eliminating fear of compelled
disclosure of the results of their efforts to those outside the attorney-client relationship.
(See Coito, supra, 54 Cal.4th at p. 493, 495-496; Lasky, supra, 172 Cal.App.3d at p. 279;
Citizens for Ceres v. Superior Court (2013) 217 Cal. App. 4th 889, 920 [“purpose of the
attorney work product privilege is to allow attorneys to advise and prepare without risk of
revealing their strategies to the other side or of giving the other side the benefit of their
12
efforts”].) In this case, Gradient, a consultant, entered into a retention agreement with
Tucker Ellis, not Nelson, in order to assist in litigation for a client of Tucker Ellis. The
documents in question, which were exchanged between Gradient and Nelson, were
created while Nelson was acting in his capacity as an employee of Tucker Ellis. Under
these circumstances, we conclude “the attorney” entitled to invoke the attorney work
product privilege is Tucker Ellis, not Nelson.
People ex rel. Lockyer v. Superior Court (2000) 83 Cal. App. 4th 387 (Lockyer)5
supports our conclusion that in this case Tucker Ellis is the holder of the attorney work
product privilege. In Lockyer, the court was asked to consider the question of the holder
of the attorney work product privilege as between Longanbach, a former deputy district
attorney (DDA) and the district attorney (DA). (Id. at p. 398.) Longanbach was under
criminal investigation for perjury and misappropriation of government property arising
out of his former employment with the DA. (Id. at p. 393.) The California Department
of Justice (DOJ) obtained a search warrant for the office formerly occupied by
Longanbach and seized certain writings authored by him. (Id. at pp. 393-394.) The trial
court upheld Longanbach’s claim of attorney-client privilege and attorney work product
privilege over the documents and the DOJ sought writ relief. (Id. at p. 395.) While
acknowledging that “a public entity, similar to a corporation, has a right to assert the
attorney-client privilege,” the Lockyer court found “the right of an individual public
prosecutor to do so is limited due to the nature of his or her position.” (Id. at p. 398.)
The court analogized the deputy district attorney to an individual officer or employee of a
corporation, and noted that “ ‘[w]here the employee’s connection with the matter grows
out of his employment to the extent that his report or statement is required in the ordinary
course of the corporation’s business, the [deputy district attorney] is no longer an
independent witness, and his [or her] statement or report is that of the [DA] employer.’ ”
(Lockyer, supra, 83 Cal.App.4th at pp. 398-399, quoting D.I. Chadbourne, Inc. v.
5
Lockyer was disapproved on other grounds in People v. Superior Court (Laff),
supra, 25 Cal.4th at p. 719, footnote 5.
13
Superior Court (1964) 60 Cal. 2d 723, 737.) The Lockyer court concluded that
“depending upon the circumstances, any possible claims of attorney-client privilege,
work product protection or privacy regarding documents or statements prepared by a
prosecuting attorney, such as DDA Longanbach, made in the course of his employment
with the DA, would belong to the DA and not the individual DDA.” (Id. at pp. 399, 400;
italics added.)
Nelson challenges our reliance on Lockyer, arguing that the Lockyer court relied
on the concept that a district attorney is not an “attorney” who represents clients as such,
and, the decision is otherwise distinguishable because attorney work product in the
criminal context is governed by Penal Code section 1054.6, not section 2018.030. We
are not persuaded. The Lockyer court’s analysis of who could assert the privilege as
between a former deputy district attorney and the district attorney did not turn on its
observation that the district attorney does not have “clients” in the traditional sense. To
the contrary, the court considered that the relationship between the deputy district
attorney and the district attorney was similar to that of corporate employee and corporate
employer. (Id. at pp. 398-399.) Nor did the Lockyer court’s conclusion depend on any
distinction between civil and criminal discovery. The Lockyer court merely observed that
“confidentiality regarding the fruits of investigations of a public prosecutor are governed
exclusively by Evidence Code section 1040, which controls the assertion of claims for
governmental privilege for official information,” and requires a balancing of the necessity
of preserving confidentiality against the interests in disclosure. (Lockyer, supra, 83
Cal.App.4th at p. 399; see Shepherd v. Superior Court (1976) 17 Cal. 3d 107, 122-123,
overruled in part on another ground in People v. Holloway (2004) 33 Cal. 4th 96, 131).
However, Penal Code section 1054.6, which governs attorney work product in the
criminal context, explicitly defines attorney work product by reference to section
2018.030. Specifically, the Penal Code reads: “Neither the defendant nor the prosecuting
attorney is required to disclose any materials or information which are work product as
defined in subdivision (a) of Section 2018.030 of the Code of Civil Procedure.” (Pen.
Code, § 1054.6; see Lockyer, supra, at pp. 397-398 & fn. 8.)
14
Our conclusion that Tucker Ellis is the holder of the attorney work product
privilege under the circumstances of this case is further buttressed when we consider the
anomalous results that would potentially flow were we to adopt Nelson’s position.
Concededly, this case involves law firm documents created by a single employee attorney
for a client of the employer law firm. But, as Tucker Ellis notes, many law firm
documents will reflect the work product of multiple current and former attorneys,
potentially practicing in multiple jurisdictions. Securing permission from these attorneys
to disclose their work product, and resolving conflicts among them when they do not
agree about whether certain information constitutes work product or who was involved in
creating it, will be a burdensome and complicated task for a law firm required to comply
with requests for disclosure while preserving the privilege. In addition, to the extent this
task involves former attorneys who created work product for current firm clients, as here,
the purpose of the attorney work product privilege will be better served by allowing the
firm itself - with current knowledge of ongoing litigation and client issues and in the
context of the firm’s on-going attorney-client relationships - to speak with one voice
regarding the assertion of the privilege. By declining to extend the scope of the attorney
work product privilege to include Nelson in this case we also avoid undue intrusion into
the equally sacrosanct duty of a law firm to zealously represent the interests of its clients
with undivided loyalty. As our high court has aptly explained: “Attorneys have a duty to
maintain undivided loyalty to their clients to avoid undermining public confidence in the
legal profession and the judicial process. [Citations.] The effective functioning of the
fiduciary relationship between attorney and client depends on the client’s trust and
confidence in counsel. [Citation.] The courts will protect clients’ legitimate expectations
of loyalty to preserve this essential basis for trust and security in the attorney-client
relationship.” (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.
(1999) 20 Cal. 4th 1135, 1146-1147.)
We conclude by again emphasizing the narrowness of our holding. We hold only
that, under California law and on the record before us, Tucker Ellis is the holder of the
section 2018.030 attorney work product privilege that attached to documents created by
15
Nelson during and in the scope of his employment. As the holder of the attorney work
product privilege, Tucker Ellis had no legal duty to secure Nelson’s permission before
disclosing the documents to others. 6
DISPOSITION
Let a preemptory writ of mandate issue directing respondent court to vacate its
July 19, 2016, summary adjudication order, and enter a new order consistent with this
decision. This decision will become final as to this court after it is filed. (Cal. Rules of
Court, rule 8.490(b)(2)(A).) Upon finality of this decision, the temporary stay order
issued by this court on September 23, 2016 is vacated. Costs in this original proceeding
are awarded to petitioner Tucker Ellis LLP. (Cal. Rules of Court, rule 8.493(1)(A).)
_________________________
Jenkins, J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
Tucker Ellis LLP v. Superior Court of City and County of San Francisco, and Evan C. Nelson, A148956
6
Nelson also sought summary adjudication of 18 other issues, but he withdrew his
request as to those issues in respondent court. Respondent court also noted it was not
ruling on issues of Nelson’s waiver or assignment of the attorney work product privilege,
whether any of the documents in question actually qualified as attorney work product, or
whether California or Ohio law applies. Accordingly, our decision should not be read
and we express no opinion on those issues.
16
Trial Court: City and County of San Francisco, Superior Court
Trial Judge: Hon. Harold E. Kahn, Judge
Counsel for Petitioner: GREENBERG TRAURIG LLP
Tucker Ellis LLP, Scott D. Bertzky, William Goines,
Karen Rosenthal, Cindy Hamilton
Counsel for Real Party in Interest: KELLER SLOAN, ROMAN & HOLLAND LLP
Evan C. Nelson Thomas H. Sloan, Jr.
Evan C. Nelson
Tucker Ellis LLP v. Superior Court of City and County of San Francisco, and Evan C. Nelson, A148956
17