DISCOVERY CASE OUTLINE
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ATTORNEY- CLIENT PRIVILEGE
CONTENTS
PURPOSE OF PRIVILEGE
CONSTRUCTION
BURDEN OF PROOF
Foundational Facts: party must testify as to foundational facts
Privilege
Presumption of Confidentiality
Waivers & Exceptions
No in camera inspection to determine
ELEMENTS:
ATTORNEY - CLIENT RELATIONSHIP
Preliminary communications
Subsequent communications
Payment of fees not determinative
Employment not required
Timing/ExistenceJailhouse lawyer not covered
Acting in capacity of attorney
House Counsel
Law Corporations
Agents of AttorneyClient (see also Joint Client under Exceptions below)
[EC §951]is holder of privilege [EC 953]Factors
Agents: communication via agent of either
Experts
Partnership (joint client exception)
Trust
Insurance Co/Insured
Guardian ad litem
Labor Union
CorporationCorporate spokesperson[Who speaks for the corporation ? ]
Closely held corp treated same as other corp
FormationHolder of Privilege EC 952
COMMUNICATION [EC §952]
Facts not protected; communications protected
Confidentiality
CommunicationCommunications other than oral & written statements
Untransmitted or received communications
Fee Agreements protected
Communications w/ identifying information deleted
Existence of Attorney -Client relationship generally not protected
Client names normally not protected
Client names protected if reveal confidential information
Subject matter of communication not protected
Disclosure of subject matter not a waiver
Client records not protected
WAIVERS [EC 912(a)]
Advice of counsel defense
State of mind of attorney
Defense of adequacy of investigation
Issue of case tendered by holder
Scope of waiver limitedRefreshing recollection not a waiver
Voluntary Disclosure of significant part of communication [EC §912]Third persons to whom disclosure permitted: [Ev C §952]
Inadvertent disclosure
Failure to assert timely
Suppression of erroneously disclosed informationTechnicalities resulting in injustice & sanctions disfavored
Waiver as to one attorney not waiver as to others
Limited to statute
Burden of Proof
Federal "Garner Rule" rejected
Crime - Fraud Exception
Joint Client Exception[Ev.C. §962]Factual & evidentiary issue
Partnerships
Close Corporations
Insurance Co./ Insured / Cumis Counsel
TrustWaiver by all holders required
Communications made in the course of that relationship
Third party claims
FORCED ELECTION
TRIAL IMPLICATIONS
STATUTES
Evidence Code Lawyer-Client Privilege
Definitions
950.Lawyer As used in this article, "lawyer" means a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.
951.Client As used in this article, "client" means a person who, directly or through an authorized representative, consults a lawyer for the
purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent
(a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.
952.Confidential Communication As used in this article, "confidential communication between client and lawyer" means information transmitted between a client
and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons
other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of
the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in
the course of that relationship.
953.Holder of privilege As used in this article, "holder of the privilege" means:
(a) The client when he has no guardian or conservator.
(b) A guardian or conservator of the client when the client has a guardian or conservator.
(c) The personal representative of the client if the client is dead.
(d) A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation,
or public entity that is no longer in existence.
Claiming the Privilege
954. Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to
refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege
is claimed by:
(a) The holder of the privilege;
(b) A person who is authorized to claim the privilege by the holder of the privilege; or
(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there
is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure....
Lawyer Duty to Claim Privilege
955. The lawyer who received or made a communication subject to the privilege under this article shall claim the privilege whenever he
is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.
Evid. Code §917. Presume communication is Confidential (a) Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a
communication made in confidence in the course of the lawyer-client...the communication is presumed to have been made in confidence and the opponent of the
claim of privilege has the burden of proof to establish that the communication was not confidential.
(b) A communication between persons in a relationship listed in subdivision (a) does not lose its privileged character for the sole reason that it is communicated
by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the
communication.
Evid. Code §912 Waiver by Disclosure. (a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954
(lawyer-client privilege), ... is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed
a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct
of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing
and opportunity to claim the privilege.
(b) Where two or more persons are joint holders of a privilege provided by Section 954 (lawyer-client privilege),...a waiver of the right of a particular joint
holder of the privilege to claim the privilege does not affect the right of another joint holder to claim the privilege. ...
(c) A disclosure that is itself privileged is not a waiver of any privilege.
(d) A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), ...when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer...was consulted, is not a waiver of the privilege.
Evid Code 915 No In Camera Exam (a) ..., the presiding officer may not require disclosure of information claimed to be privileged under this division ...
in order to rule on the claim of privilege; ...
Exceptions to Attorney-Client Privilege: Evidence Code Sections 956 et seq.
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.)
(2003), 113 Cal. App. 4th 1377
A&M Records Inc v. Heilman (1977), 75 Cal.App.3d 554
Abbott v. Superior Court(1947), 78 Cal.App.2d 19
Aetna Casualty & Surety Co. v. Superior Court (1984), 153
Cal.App.3d 467
Aerojet General Corp. v. Transport Indemnity Ins.(1993), 18
Cal.App.4th 996
Alpha Beta Co. v. Superior Court(1984), 157 Cal.App.3d 818
American Airlines, Inc. v. Superior
Court (DiMarco) (2003),
114 Cal. App. 4th 881
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38
Cal.App.3d 579
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d
1240
Benge v. Superior Court (1982),131 Cal.App.3d 336
Best Products v.
Superior
Court LA (2004),
119 Cal.App.4th 1181
Blue Ridge Ins.Co. v. Superior Court (1988) 202 Cal.App.3d 339
Bro-Tech
Corp. v. Thermax, Inc.,2008 WL 724627 (E.D.
Pa. 3/17/08)
Brunner v. Superior Court(1959), 51 Cal.2d 616
Calrson, Collins, Gordon & Bold v. Banducci(1967), 257
Cal.App.2d 212
Campaign v. Safeway Stores Inc. (1972), 29 Cal.App.3d 362
Cavanaugh Nailing Mach. Co. v. Cavanaugh (1959), 167 Cal.App.2d
657
City & County of San Francisco v. Superior Court(1951) 37
Cal.2d 227
Chicago Title Ins. Co. v. Superior Court (1985), 174 Cal.App.3d
ll42
Chronicle Publishing Co. v. Superior Court(1960), 54 Cal.2d 548
Collette v. Sarrasin (1920), 184 Cal. 283
Commodity Futures Trading Comm'n v. Weintraub (1985), 471 U.S.
343
Cooke v. Superior Court (1978), 83 Cal.App.3d 582
Coy v. Superior Court(1962) 58 Cal.2d 210
D.I Chadbourne, Inc. v. Superior Court(1964), 60 Cal.2d 723
De Los Santos v. Superior Court (1980), 27 Cal.3d 677
Dickerson v. Superior Court(1982),135 Cal.App.3d 93
Fletcher v. Superior Court(1996), 44 Cal..App.4th 773
Geilim v. Superior Court(1991), 234 Cal.App.3d 166
Gene Compton's Inc. v. Superior Court (1962), 205 Cal.App.2d 365
Glacier General Assur. Co. v. Superior Court (1979), 95
Cal.App.3d 836
Glade v. Superior Court(1978), 76 Cal.App.3d 738
Goldstein v. Lees (1975), 46 Cal.App.3d 614
Gordon v. Superior Court
(1997), 55 Cal.App.4th 1546
Great American Surplus Lines Ins. v. Ace Oil Co. (E.D.Cal.1988),
120 F.R.D. 533
Greyhound v. Superior Court(1961), 56 Cal.2d 355
Grosslight v. Superior Court (1977), 72 Cal.App.3d 502
Hecht v. Superior Court (1987), 192 Cal.App.3d 560
Heffron v. Los Angeles Transit Lines (1959), 170 Cal.App.2d
709
Hernandez v. Superior Court
(2003), 112 Cal.App.4th 285
HLC Properties,
Ltd. v.
Superior Court (2005), 35
Cal.4th 54, 24 Cal.Rptr.3d 199
Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192
Holm v. Superior Court (1954), 42 Cal.2d 500
Hooser v. Superior Court (2000), 84 Cal.App.4th 997
Insurance Co. of North America v. Superior Court (1980), 108
Cal.App.3d 758
International Insurance Co. v. Montrose Chemical Co.(1991), 231
Cal.App.3d 1367
Jessup v. Superior Court (1957), 151 Cal.App.2d 102,
Johnson v. Superior Court (1995), 38 Cal.App.4th 463
Jones v. Superior Court (1962) 58 Cal.2d 56
Jones v. Superior Court(1981), 119 Cal.App.3d 534
Kaiser Foundation Hospitals v. Superior Court (1998), 66 Cal.App.4th
1217
Kerns Construction Co. v. Superior Court(1968), 266 Cal.App.2d 405
Estate of Kime (1983), 144 Cal.App.3d 246
Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th
1513
Lasky Haas et al v. Superior Court(1985), 172 Cal.App.3d 264
Lipton v. Superior Court (1966), 48 Cal.App.4th 1599
Lohman v. Superior Court(1978), 81 Cal. App.3d 90
Luhdorff v. Superior Court (1985), 166 Cal.App.3d 485
Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333
Mass v. Municipal Court(19 ), 175 Cal.App.3d 601
McCain v. Phoenix Resources (1987), 185 Cal.App.3d 575
Ex parte McDonough(1915), 170 Cal. 230
Merritt v. Superior Court (1970), 9 Cal.App.3d 721
Miller v. Superior Court(1980), 111 Cal.App.3d 390
Miller, Morton Caillat & Nevis v. Superior Court(19 )169 Cal.App.3d
552
Mitchell v. Superior Court(1984), 37 Cal.3d 591
Mize v. Atcheson, Topeka & Santa Fe Ry.(1975) 46 Cal.App.3d 436
Moeller v. Superior Court (1997), 16 Cal.4th 1124
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1
Morales v. Superior Court (1979), 99 Cal.App.3d 307
Motown Record Corp. v. Superior Court (1984), 155 Cal.App.3d 482
Mowry v. Superior Court (1962), 202 Cal.App.2d 229
Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71
National Football League Properties v. Superior Court (1998),
65Cal.App.4th 100
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476
In re Navarro (1979), 93 Cal.App.3d 325
Newsom v. City of Oakland (1974), 37 Cal.App.3d 1050
Nowell v. Superior Court(1963), 223 Cal.App.2d 652
Oxy Resources
California LLC v. Superior Court (Calpine Natural Gas LP)
(2004), 115 Cal.App.4th 874
Owens v. Palos Verdes Monaco (1983), 142 Cal.App.3d 855
O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal.App.4th 563
Payless Drug Stores Inc. v. Superior Court(1976), 54 Cal.App.3d 988
Paley v. Superior Court(1955), 137 Cal.App.2d 450
People v. Canfield (1974), 12 Cal.3d 699
People v. Castiel(1957), 153 Cal.App.2d 653
People v. Clark (1990), 50 Cal.3d 583
People v. Cox (1968), 263 Cal.App.2d 176
People v. Dubrin (1965), 232 Cal.App.2d 674
People v. Gionis(1995), 9 Cal.4th 1196
People v. Gomez (1982), 134 Cal.App.3d 874
People v. Glen Arms Estate(1964), 230 Cal.App.2d 841
People v. Kor (1954), 129 Cal. App2d 436
People v. Lee (1970), 3 Cal.App.3d 514, 527
People v. Lines (1975), 13 Cal.3d 500
People v. Perry(1972), 7 Cal.3d 756
People v. Poulin(1972), 27 Cal.App.3d 54
People v. Superior Court(Bauman & Rose)( ), 37 Cal.App.4th 1757
People v. Valasquez (1987), 192 Cal.App.3d 319
Raytheon v. Superior Court(1989),
208 Cal.App.3d 683
Rawnsley v. Superior Court(1986),
183 Cal.App.3d 86
Rico v.
Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51
Roberts v. City of Palmdale
(1993), 5 Cal.4th 363
Rockwell Int.Corp. v. Superior Court
(1994), 26 Cal.App.4th 1255
Rosso, Johnson, Rosso & Ebersold
v. Superior Court(19 ), 191
Cal.App.3d 1514
Rumac Inc. v. Bottomley(1983),
143 Cal.App.3d 810
San Diego Prof. Assn. v. Superior Court (1962), 58 Cal.2d 194
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386
Scottsdale Ins. Co. v. Superior Court (1997), 59 Cal.App.4th 263
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529
Scull v. Superior Court(1988), 206 Cal.App.3d 784
Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424
Southern California Gas Co. v. P.U.C.(1990), 50 Cal.3d 31
Standish v. Superior Court (1999), 71 Cal.App.4th 1130
State Compensation Insurance Fund v. Telanoff (1999),70
Cal.App.4th 644
State Farm Fire & Casualty Co. v. Superior Court(1997), 54
Cal.App.4th 625
State Farm Fire & Casualty Co. v. Superior Court (1988),206
Cal.App.3d 1428
State Farm Fire & Casualty Co. v. Superior Court(1989), 216
Cal.App.3d 1222
STI Outdoor v. Superior Court (Eller
Media Co.) (2001) 91 Cal.App.4th 334
Suezaki v. Superior Court (1962), 58 Cal.2d 166, 178
Sullivan v. Superior Court(1972), 29 Cal.App.3d 64
Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123,
674 N.E.2d 663
Torres v. Superior Court(1990), 221 Cal.App.3d 181
Torres v. Superior Court(19 ), 50 Cal.App.3d 778
Transamerica Title Insur Co v. Superior Court(1987), 188
Cal.App.3d 1047
Travelers Ins. Co. v. Superior Court (1983), 143 Cal.App.3d 436
Triple A Machine Shop v. State (1982), 213 Cal.App.3d 131 143
UpJohn Co. v. United States
(1981), 449 U.S. 383
Venture Law Group
v.
Superior Court (2004), 118 Cal. App. 4th 96
Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766
Wellpoint Health Networks, Inc. v. Superior Court (1997), 59
Cal.App.4th 110
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 990
P.2d 591
Willis v. Superior Court(1980) 112 Cal.App.3d 277
Wilson v. Jefferson(1985), 163 Cal.App.3d 952
Wilson v. Superior Court (1957), 148 Cal.App.2d 433
Winegar v. Gray (1962), 204 Cal.App.2d 303
Wortham & Van Liew v. Superior Court(1987) 188 Cal.App.3d 927
Zurich American Ins.
Co. v. Superior
Court (Watts Industries, Inc.) (2007) , Cal.App.4th
[Oct. 11, 2007.]
Promote full & open discussion & complete disclosure
Assure right to counsel by protecting confidentially & allowing full disclosure, conferring and confidingMitchell v. Superior Court(1984), 37 Cal.3d 591, p.599
Southern California Gas CO v. P.U.C.(1990), 50 Cal.3d 31(1990),
People v. Valazquez (1987), 192 Cal.App.3d 319 p.327
City & County of San Francisco v. Superior Court(1951), 37 Cal.2d 227
Holm v. Superior Court(1954), 42 Cal.2d 500
Suezaki v. Superior Court(1962),58 Cal.2d 166, 178
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377
Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51
See also re federal attorney client privilege [note that California privileges are created and governed by statute while federal privilege are based on common law. Privileges vary from jurisdiction to jurisdiction and in some cases the privileges are signficantly different.]
UpJohn Co. v. United States (1981), 449 U.S. 383, 389ONTENTS
Absolute privilege
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003) 113 Cal. App. 4th 1377, 1387 ["[T]he [attorney-client] privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case." (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557.) "Although {Slip Opn. Page 12} exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. . . . 'The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.' [Citations.]" (Mitchell, supra, 37 Cal.3d at pp. 599-600.)"]
Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557 [Special master must set a hearing on privilege claims after execution of a search warrant of a non-target attorney office. "Assuming the requisite relationship and confidential communication, the privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case. (Shannon v. Superior Court (1990) 217 Cal.App.3d 986, 995 [266 Cal.Rptr. 242].) The term "confidential communication" is broadly construed, and communications between a lawyer and his client are presumed confidential, with the burden on the party seeking disclosure to show otherwise. (Evid. Code, § 917; Estate of Kime (1983) 144 Cal.App.3d 246, 256 [193 Cal.Rptr. 718].)"]
Strict
Liberal
Mixed: strict re existence of relationship; liberal re protection of relationshipPeople v. Valasquez(1987),192 Cal.App.3d 319, fn 4, p.327 [citing Benge & CCSF]
Elements, exceptions & waivers prescribed by statute
Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 p.475
Foundational Facts: party must testify as to foundational facts
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [p.20 slip opinion: privilege log and conclusionary declarations from counsel failed to establish privilege or Common Interest Doctrine]
People v. Kor(1954), 129 Cal. App2d 436
State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625, p.640 [independent facts: time , date, place of occurrence]
Scripps Health v. Superior Court (6/6/03) 4th Dist Div.1) [in house attorney declaration]
Privilege Bof P on party asserting
Greyhound v Superior Court(1961), 56 Cal.2d 355
D I Chadbourne Inc. v. Superior Court(1964), 60 Cal.2d 723p. 739
Alpha Beta Co. v. Superior Court ( ), 157 Cal.App.3d 818.
Collette v. Sarrasin (1920), 184 Cal.283
Mizev. Atcheson, Topeka & Santa Fe Ry.(1975) 46 Cal.App.3d 436 p.447
People v. Glen Arms Estate(1964), 230 Cal.App.2d 841
Chronicle Publishing Co. v. Superior Court(1960), 54 Cal.2d 548
San Diego Prof.Assn. v. Superior Court (1962), 58 Cal.2d 194
Scripps Health v. Superior Court(2003), 109 Cal.App.4th 529 Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.
Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424
State Farm Fire & Casualty Co. vs. Superior Court
Kaiser Foundation Hospitals v. Superior Court (1998), 66 Cal.App.4th 1217 [must be sufficient facts in "privilege log"]
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [the court suggested that once the prima facie showing is made re AC the BP shifts to show attorney not acting in attorney capacity]Presumption of Confidentiality EC 917
Opponent of claim of privilege has Bof P to establish non-confidentiality
Gordon v. Superior Court (1997), 55 Cal.App.4th 1546,1557 ["The term "confidential communication" is broadly construed, and communications between a lawyer and his client are presumed confidential, with the burden on the party seeking disclosure to show otherwise. (Evid. Code, § 917; Estate of Kime (1983) 144 Cal.App.3d 246, 256 [193 Cal.Rptr. 718].)
Of course, some communications are not "confidential" and it may be that business checks payable to a client or others on the client's behalf are not privileged.]
Rumac Inc. v. Bottomley(1983), 143 Cal.App.3d 810
Alpha Beta Co. v. Superior Court(1984), 157 Cal.App.3d 818
State Farm Fire & Casualty Co. v. Superior Court
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529
Waivers & Exceptions: BP on proponent
Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 Cal.App.4thGeilim v. Superior Court(1991), 234 Cal.App.3d 166 [citing Cooke (1978), 83 Cal.App.3d 582]
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [Once prima facie showing of attorney, BP shifts to opponent to show by evidence attorney not acting as attorney; assertion in supp.memo insufficient]
Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217 [If attorney client communication on subject tendered as an issue, Bof P to show dominant purpose of specific communication.]No in camera inspection to determine [EC §915; note 2001 amendments to (a) & (b) re work product]
Cooke v. Superior Court (1978), 83 Cal.App.3d 582, 588 , 147 Cal.Rptr. 915 ["We turn then to the question of whether the trial court acted within its jurisdiction in finding that the eight documents now involved were privileged and confidential. As did the trial court, we must approach that issue without inspection of the documents themselves, under the compulsion of subdivision (a) of section 915 of the Evidence Code. (See Carlton v. Superior Court (1968) 261 Cal.App.2d 282, 292-293 [67 Cal.Rptr. 568].)"]Southern California Gas Co. v. P.U.C.(1990), 50 Cal.3d 31, p.45 fn 19
Lipton v. Superior Court (1996), 48 Cal.App.4th 1599
CF.
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [court cites Montebello Rose where in camera of claimed AC documents was conducted and suggests in camera review to determine "dominant purpose" of doc. when attorney allegedly acts in dual capacity; determination should be made on the basis of the "subject matter of each document"; the court suggested that once the prima facie showing is made re AC the BP shifts to show attorney not acting in attorney capacity]
Moeller v. Superior Court (1997), 16 Cal.4th 1124, 1135 [dictum citing Cornish v. Superior Court(1989), 209 Cal.App.3d 467, 480 re in camera disclosure to determine existence of relationship or exception]
Rawnsley v. Superior Court(1986), 183 Cal.App.3d 86 ["the obvious and simple solution"]
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [In camera review may be permissible and necessary to determine issue of waiver by disclosure when the Common Interest Doctrine is invoked to justify disclosure to another. "The issue here, however, is not whether the documents contain privileged information. Rather, it is whether any privileges were waived because of disclosure to a third party. Moreover, we do not suggest that OXY must amend its privilege log to describe the content of each document. Instead, an in camera review of the documents would permit the court to determine whether the disclosures were reasonably necessary to accomplish the lawyer's role in the consultation." Slip Opinion p.22-23.
"In camera review of privileged documents is generally prohibited because "the privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case." (Gordon v. Superior Court (1997) 55 Cal.App.4th 1546, 1557; see also Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 466.)The rule against in camera review, however, is not absolute. (See Cornish v. Superior Court (1989) 209 Cal.App.3d 467, 480.) "The rule is based on the notion that when there is a claim of attorney client privilege, for example, it is neither customary nor necessary to review the contents of the communication in order to determine whether the privilege applies as the court's factual determination does not involve the nature of the communications or the effect of disclosure but rather the existence of the relationship at the time the communication was made, the intent of the client and whether the communication emanates from the client. [Citation.]" (Ibid.) "[C]ourts have recognized, if necessary to determine whether an exception to the privilege applies, the court may conduct an in camera hearing notwithstanding section 915. [Citation.]" (Ibid., italics {Slip Opn. Page 23} added.) Generally, in camera hearings should be limited to a determination whether there is an exception to, or waiver of, the privilege, and "whether the exception or waiver depends on the content of the communication. [Citation.]" (People v. Manago (1990) 220 Cal.App.3d 982, 990, fn.4.) "[W]here an exception to a privilege depends upon the content of a communication, the court may require disclosure in camera in making its ruling." (Mavroudis v. Superior Court (1980) 102 Cal.App.3d 594, 606.)]
ELEMENTS: Confidential,
Communication, in the course of
Attorney, Client, Relationship,
Evid.Code 954
" ...the client whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing , a confidential communication between client and lawyer ...."Issue determined on item by item basis
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377 [Case remanded for trial court to conduct exam of each question at a deposition and each document at issue to determine the applicability of the attorney-client or work product based on the dominant purpose of the communication. Insurance Co. claims file discoverable in bad faith cause of action. "However, not everything in the insurer's claims file is discoverable. Upon timely objection or motion for protective order, privileged information (e.g., attorney-client {Slip Opn. Page 27} communications or attorney work product) is protected from discovery. Application of the privilege must generally be determined by the court on a document-by-document and issue-by-issue basis. (See Meritplan Insurance Co. v. Superior Court (1981) 124 Cal.App.3d 237, 242.) " ]
ATTORNEY -
CLIENT RELATIONSHIP
Preliminary communications: privilege applies even if no retention of lawyer
Benge v. Superior Court (1982), 131 Cal.App.3d 336 [attorney speaking to union; half retained attorney]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1003 [citing Estate of Dupont(1943), 60 Cal.App.2d 276,287Subsequent communications: not applicable when employment rejected
People v. Gionis(1995), 9 Cal..4th 1196
Payment of fees not determinative factor
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 213 [beneficiaries of trust sought privileged communications between trustee and its attorney; "Wells Fargo concedes the trust paid for O'Melveny's legal services related to trust administration, but asserts it did not pay for the services either of Wells Fargo's in-house attorneys or White & Case, the firm that represents Wells Fargo in this litigation. It does not matter. Payment of fees does not determine ownership of the attorney-client privilege. The privilege belongs to the holder, which in this context is the attorney's client. (Evid. Code, § 954, subd. (a).) As discussed above, the trustee, rather than the beneficiary, is the client of an attorney who gives legal advice to the trustee, whether on the subject of trust administration (Moeller, supra, 16 Cal.4th at pp. 1129-1130; Fletcher v. Superior Court, supra, 44 Cal.App.4th at p. 777; Lasky, Haas, Cohler & Munter v. Superior Court, supra, 172 Cal.App.3d at p. 278) or of the trustee's own potential liability (cf. Moeller, supra, at p. 1135). To the extent the source of payment has any significance, it is but one indicium in determining the existence of an attorney-client relationship (Lasky, Haas, Cohler & Munter v. Superior Court, supra, at p. 285) and, thus, who holds the privilege."]
Benge v. Superior Court (1982), 131 Cal.App.3d 336
People v. Canfield (1974), 12 Cal.3d 699 [employment need not result from communication; financial eligibility statement given to obtain PD in criminal defense is protected]Timing/Existence: selection at time of communication unnecessary so long as communication intended for attorney
Gene Compton's Inc v.Superior Court (1962), 205 Cal.App.2d 365 [accident report to insurance co.]
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424 [accident report to insurance co.]
Travelers Ins. CO v. Superior Court (1983), 143 Cal.App.3d 436[accident report to insurance co.]
Heffronv. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709 [accident report to insurance co.]
Holm v. Superior Court (1954), 42 Cal.2d 500 [if dual purpose for creation of communication, look to dominant purpose]
People v. Valasquez (1987), 192 Cal.App.3d 319 [no belief jailhouse lawyer was graduate of law school or admitted to practice anywhere]
American Airlines, Inc. v. Superior Court (DiMarco) (2003), 114 Cal. App. 4th 881; 2003 Cal. App. LEXIS 1923,
In a wrongful termination case, a union rep had investigated and assisted in presentation of a grievance in arbitration. At deposition he testified as to relevant events but refused to provide details or names of persons directly involved claiming that information was the result of confidential communications between union rep and union members. The appellate court reversed the trial court and ordered that the questions be answered.
The court held a statute providing for general right to union representation does not create a privilege similar to the attorney-client privilege. It relied on the narrow scope of Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766 . “Thus, based upon the language of section 10950, its legislative history, and the court's characterization of the communication as "legal advice," the court construed the statute "as including a guarantee of confidentiality in its extension of the right of representation to include representation by lay persons as well as counsel in connection with welfare fair hearings." (Crisan, supra, 33 Cal.3d at pp. 768, 772.) The court did not create a new evidentiary privilege as a matter of judicial policy; rather, it held the Legislature impliedly crafted the privilege as it expanded section 10950.” “The statute in Crisan expressly pertained to authorized advocates before a tribunal under a narrowly drawn legislative scheme in which laypersons were permitted to act in lieu of attorneys. On the other hand, section 923 is only a general declaration of the well-accepted public policy that employees have the freedom to designate representatives "to negotiate the terms and conditions" of employment. Section 923 does not create any specific proceedings or hearings from which it can be inferred the existence of a privilege would apply.”
In addition, the court rejected privacy. “The questions generally related to the names of American employees DiMarco had heard using racial slurs toward Alamad and the names of those American employees whose arbitration testimony was allegedly coerced. These questions do not delve into the constitutionally protected right of associational privacy.” In addition, there were no promises, agreements, or reasonable expectations of privacy.Capacity: Acting in capacity of attorney
Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766 ["the lawyer-client privilege set forth in Evidence Code section 950 et seq. does not require that the purported lawyer actually be one." Supreme Court found "a privilege comparable to the attorney-client is impliedly provided by statute" when the statute expressly provides for lay representation as an alternative to lawyer representation to protect due process rights and the welfare recipient "believed and intended their consultation with him in that capacity to be confidential". The court cautioned against applying this reasoning as to "comparable" privilege to other statutes: "Nothing we have said with respect to section 10950 of the Welfare and Institutions Code demands an identical interpretation of those other enactments, each of which will have to be examined against its own statutory, historical and constitutional background."]
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377. [Dominant purpose test applies to capacity of attorney acting. "This "dominant purpose" test not only looks to the dominant purpose for the communication, but also to the dominant purpose of the attorney's work. (Aetna Causalty & Surety Co. v. Superior Court (1984) 153 Cal.App.3d 467, 475 (Aetna); Wellpoint, supra, 59 Cal.App.4th at pp. 121-122.) Thus, "the attorney-client privilege [would] not apply without qualification where the attorney was merely acting as a negotiator for the client [citation], or merely gave business advice [citation], or was merely acting as a trustee for the client [citation]." (Aetna, supra, 153 Cal.App.3d at p. 475.)" ..."we conclude that evidence reflecting the factual investigation of 2,022 Ranch's claim is subject to discovery. Only those communications reflecting the requesting of, or rendering of, legal advice are protected by the attorney-client privilege, and only the attorney's legal impressions, conclusions, opinions, or legal research or theories are subject to the attorney work product privilege. ..."
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003), 113 Cal. App. 4th 1377 <>at p. 1398 "...employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege."
"In reaching this conclusion, we first observe that the claims adjuster primarily responsible for 2,022 Ranch's claim admitted that her position at Chicago Title for the most part was that of a claims adjuster: investigating the claims, analyzing them, and determining whether payment should be made. This is work that in the insurance industry ordinarily could be done by an individual not licensed to practice law. Cloaking such an adjuster's factual investigation in privilege would shield from discovery information that otherwise would not be entitled to any protection if communicated by an adjuster who was not an attorney but performed the same duties. "To apply the privilege in such a situation would have the effect of placing a premium upon use of attorneys as [adjusters], nonattorneys or clients acting for themselves having no such right to protect their" communications. (Watt, supra, 115 Cal.App.3d at p. 805.) "...this entitles to protection only those communications that constitute the actual rendering of, or request for, legal advice, not those communications reflecting the adjusters' factual investigation of 2,022 Ranch's claim..... employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege."]
Wellpoint Health Networks .Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [outside attorney investigating employee claims requires communication by communication analysis; hiring a lawyer to conduct an employer's investigation does not protect entire investigation; strong dictim]
Kaiser Foundation Hospitals v. Superior Court(1987), 192 Cal.App.3d 319 [dominant purpose of communication ]
Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [attorney hired to investigate mudslide claim and advise on coverage issue acting as attorney; 2022 Ranch case suggests AetnaI case protects work of outside counsel only to determine coverage issue and adds "employing attorneys to conduct routine claims investigations does not make their factual investigations subject to the attorney-client privilege." p.29 of slip opinion "To the extent that Aetna can be read so broadly as to hold that any factual claims investigation work by an in-house attorney claims adjuster is privileged, we decline to follow that decision as contrary to California law. (Montebello Rose, supra, 119 Cal.App.3d at p. 32; Watt, supra, 115 Cal.App.3d at vp. 805; Wellpoint, supra, 59 Cal.App.4th at pp. 121-122; Chicago Title, supra, 174 Cal.App.3d at pp. 1151, 1154.) "]
Montebello Rose v. ALRB (1981), 119 Cal.App3d 1
Collettev. Sarrasin (1920), 184 Cal.283 [prior AC relationship doesn't prove acting as attorney for particular t/a]
Benge v. Superior Court (1982)[informational meeting conducted by attorney retained by union]See also cases cited in 2002 Ranch re non-protection of outside counsel acting in non-lawyer function
In National Farmers Union Property & Casualty Co. v. District Court (Colo. 1986) 718 P.2d 1044, 1047-1048
In Mission Nat. Ins. Co. v. Lilly (D.Minn. 1986) 112 F.R.D. 160, 163-165Chicago Title Ins. Co.v. Superior Court (1985), 174 Cal.App.3d ll42 [Rationale of case is based on waiver by tender of issue but court notes merger of roles of attorney and corp exec as making the two indistinguishable. The court also notes at p.1151 that A/C doesn't apply to house counsel or any attorney acting in non-atty. capacity. ]
Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217 [no issue made of fact that communication was made to in-house counsel]
State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [claims adjuster to house counsel to outside counsel]
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 Hospital self insured and communication to house counsel. Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.
Law Corporations [B&P Code §§6160 et seq]
Out of State attorney covered: Ev.C.950In Re Jordon(1974), 12 Cal.3d 575
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227 p.236 ["any form of agency", client's or attorney's agent, interpreter, messenger]
Cf re psych priv.
Luhdorff v. Superior Court(1985) 166 Cal.App.3d 485[ Clinical social worker at county hospital conducting interview & part of psych team]
People v. Gomez (1982), 134 Cal.App.3d 874[Student interns w/ family court services not within priv]
People v. Clark (1990), 50 Cal.3d 583 [psych commun to attorney ]
Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 [Client's employee can be acting as agent or paralegal for outside counsel. "The trial court found, however, that Rowley, in summarizing and transcribing the comments made during the conference, assumed the role of Yukevich's paralegal. Substantial evidence supports the court's finding. Yukevich testified that Rowley was acting under his directions. Rowley merely included information that Yukevich wanted in the document. Rowley confirmed that he was acting under Yukevich's directions to take notes of specific subject areas addressed during the conference. Under these facts, Rowley was not acting in his capacity as Mitsubishi's representative. Rowley also was not providing nor receiving information on Mitsubishi's behalf. The exchange was simply between an attorney and an individual acting as the attorney's paralegal."
Client [EC §951] Holder of privilege [EC 953] (see also Joint Client under Exceptions below)
Payment of fees
Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [one indicia]
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201 [one factor]
Agents: communication via agent of either
State Farm Fire & Casualty v. Superior Court (1997), 54 Cal.App.4th 625 p. 639
State Farm Fire & Casualty Co. v. Superior Court(1989), 216 Cal.App.3d 1222 [adjuster may be joint agent of insured and insurance company]
Soltani-Rastagerv. Superior Court (1989), 208 Cal.App.3d 424 [insurance adjuster]
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227 p.236 [physician selected by attorney to examine client and communicate to attorney re condition; interpreter, messenger, any form of agency]
People v. Clark (1990), 50 Cal.3d 583 [communication via psychiatrist obtained by attorney. "Because Dr. Weinberger was appointed to examine defendant at the request of his counsel, any statements he made to her for the purpose of obtaining a diagnosis for counsel's use in preparing a defense were subject to both the psychotherapist-patient and attorney-client privileges...."]
Torres v. Superior Court(1990 ), 221 Cal.App.3d 181
Torres v. Superior Court (1975), 50 Cal.App.3d 778
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [Communication to expert if for communication to attorney; not if just for expert analysis] see also Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver.)
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100 [agency for negotiating K is not the agency refered to in EC 951 and doesn't create atty-client relationship between attorney for agent in negotiations and principal ; relationship is between attorney& agent]Rico v. Mitsubishi Motors Corp. (2004) , 116 Cal. App. 4th 51 [Client's employee can be acting as agent or paralegal for outside counsel. "The trial court found, however, that Rowley, in summarizing and transcribing the comments made during the conference, assumed the role of Yukevich's paralegal. Substantial evidence supports the court's finding. Yukevich testified that Rowley was acting under his directions. Rowley merely included information that Yukevich wanted in the document. Rowley confirmed that he was acting under Yukevich's directions to take notes of specific subject areas addressed during the conference. Under these facts, Rowley was not acting in his capacity as Mitsubishi's representative. Rowley also was not providing nor receiving information on Mitsubishi's behalf. The exchange was simply between an attorney and an individual acting as the attorney's paralegal."
People v. Lines (1975), 13 Cal.3d 500
De Los Santos v. Superior Court(1980), 27 Cal.3d 677 [mother/guardian ad litem; all communications for attorney whether or not passed on to attorney ]
Jones v. Superior Court (1962) 58 Cal.2d 56, 60-61Holm v. Superior Court(1954), 42 Cal.2d 500 [any form of agency formed or set in motion by client; can be agent of client, attorney or both]
Suezaki v. Superior Court(1962), 58 Cal.2d 166, 178 [expert; investigator]
Grand Lake Drive v. Superior Court (1960), [expert] 179 Cal App.2d122
Cf re psych priv.Clinical social worker part of psych team
Luhdorff v. Superior Court (1985), 166 Cal.App.3d 485
Student interns under supervision
People v. Gomez (1982), 134 Cal.App.3d 874
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476 [Communication to expert if for communication to attorney; not if just for expert analysis ]
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver.)
Rico v. Mitsubishi Motors Corp. (2004), 116 Cal. App. 4th 51 [Not communication from client when expert engineer retained by and advises attorney on engineering issues. "The document did not memorialize any attorney-client communication and, contrary to defendants' argument, the document was not transmitted between an attorney and his client....The dialogue was primarily between defense attorneys and defense experts. While the privilege may extend to the client's agents and employees, the privilege attaches to the client's communication as relayed by the representative, not to communication originating from the representative. An attorney-client privilege does not attach to a communication that has no connection to the client. A conference between attorneys and experts, who are simply stating their own opinions, is not protected by the attorney-client privilege.]
Mowry v. Superior Court (1962), 202 Cal.App.2d 229 [appraiser's report to attorney in condemnation action; disapproved in San Diego Prof. Assn.
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227 p.236 [physician selected by attorney to examine client and communicate to attorney re condition; interpreter, messenger, any form of agency]
People v. Clark (1990), 50 Cal.3d 583 [communication via psychiatrist obtained by attorney. "Because Dr. Weinberger was appointed to examine defendant at the request of his counsel, any statements he made to her for the purpose of obtaining a diagnosis for counsel's use in preparing a defense were subject to both the psychotherapist-patient and attorney-client privileges...."]
People v. Donovan (), 57 Cal.2d 346
Rust v. Roberts (), 171 Cal.App.2d 772 [the court held the attorney-client privilege to be applicable in a situation where real property appraisers for the state were sought to be interrogated by the adverse party. But it was there sought, among other things, to compel disclosure of "the contents of the appraisers' reports" delivered to the state's attorneys in confidence]
Partnership (joint client exception)
Wortham & Van Liew v. Superior Court(1987), 188 Cal.App.3d 927 [attorney rep all partners + fiduciary duty of partners; no privilege re communication outside presence of other partner; purely personal & private communication may be privileged]
McCain v. Phoenix Resources(1986), 185 Cal.App.3d 575,581[prelim.inj requiring GP and attorney to produce all partnership documents to LP aff'd; privileged documents not at issue but court notes at p. 581 that only purely private or personal interests of one partner would be protected by atty-client privilege]
Cavanaugh Nailing Mach.Co. v. Cavanaugh (1959) 167 Cal.App.2d 657[Attorney rep both in formation from joint venture to part to corp; tr court rev'd for excluding attorney testimony; re conv. in presence of other joint client; error conceded on appeal p.660]
Hecht v. Superior Court (1987), 192 Cal.App.3d 560 [tr court rev'd for not compelling attorney to ans re conversation during formation of corp; joint client relationship continued after incorporation until ouster of one principal ]Attorney for trustee does not rep beneficiary, by virtue of that relationship
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201
Fletcher v. Superior Court(1996), 44 Cal..App.4th 773 p.777
Lasky Hass et al v. Superior Court (1985), 172 Cal.App.3d 264, p.282
Goldberg v. Frye (1990), 217 Cal.App.2d 1258, 69Successor trustee as client
Moeller v. Superior Court (1997), 16 Cal.4th 1124 [successor trustee is client for purposes of communications to trustee in official capacity; see Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201 re comments on cases]
Insurance Co / Insured: see Joint holder/client
Venture Law Group v. Superior Court (2004), Cal.App.4th [6th Dist .H026113; (Hon. William J. Elfving, Santa Clara County, Filed 4/7/04; pub. order 4/29/04 ] Former management cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.
De Los Santos v. Superior Court (1980), 27 Cal.3d 677 [privilege applies to communications between mother & child intended for attorney whether or not communicated]
Benge v. Superior Court (1982) [client includes labor union; person = unincorporated association]
Organization / Association
HLC Properties, Ltd. v. Superior Court (2005), 35 Cal.4th 54, 24 Cal.Rptr.3d 199 Business entities and the persons who run them are not an "organization" within the meaning of Ev.Code 953(d) when the businesses are treated by all concerned as the property of an individual. Bing Crosby owned various businesses that he managed with the assistance of employees during life. His executor, as personal representative, succeeded as holder of the privilege per Evid. C. § 953(c) and continued to run the businesses until the properties were transferred to a limited partnership, HLC, which brought a contract action regarding royalties against MCA. HLC asserted the attorney-client privilege as to communications between employees of the decedent and decedent's attorneys. The trial court held there was no holder of the privilege to assert it, the appellate court reversed but the Supreme Court upheld the trial court and reversed the appellate court.
First the court upheld the trial court determination that the holder of the privilege was Bing Crosby and not the unincorporated organization or association of persons who worked for the businesses referred to as Bing Crosby Enterprises. The court noted that other organizations such a labor unions or fraternities are recognized by the IRS and their assets are not probated upon the death of a member. It noted that Crosby signed the contracts in dispute as an individual and that he was treated as a sole proprietor during his life by his employees and attorneys.
Attorney represent corporation; not shareholders
Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 [6th Dist . Former management and majority shareholders cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client.
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100, 108 [paramount duty is to corp.; Garner Rule rejected]
Skarbrevik v. Cohen, England,& Whitfield (1991), 231 Cal.App.3d 692,703 [attorney has no duty to minority s/h]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [minority s/h suing majority s/h, director and pres for fraud etc in connection with sale of corp when majority s/h rec'd consulting fee; corp counsel advice & consultations to pres. protected]Directors may not have right to inspect atty-client communications
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100, 109 [CtAp found that documents were being sought in a s/h derivative action by a director in his capacity as a s/h; it held s/h had no right to inspect atty-client privileged documents; it did not reach issue of director's right to inspect but cast doubt on it noting partnership cases do not apply to corporations and that a director can't violate fiduciary duties]
Corporate spokesperson [Who speaks for the corporation to the attorney? ]
D. I. Chadbourne,Inc. v. Superior Court(1964), 60 Cal.2d 723[employee witness statement not protected]
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 [ Incident report primarily for purpose of communication to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected. Follows Chadbourne and Sierra Vista]
Suezaki v. Superior Court(1962), 58 Cal.2d 166, 178 [Trial court denied production of surveillance films taken of Plt without its knowledge by investigator hired by attorney on grounds of attorney client privilege and was reversed on that issue. Citing Holm for point that photo of bus transmitted to atty is not per se privileged]
Holm v. Superior Court(1954), 42 Cal.2d 500 [Analyzed in Chadbourne and Suezaki cases; photograph taken of bus for purpose of litigation and transmitted to attorney; accident report of a bus driver/defendant transmitted to its attorney, required by his employer (S.F. Municipal Ry.) to be executed at the time of the accident]
Payless Drug Stores Inc v. Superior Court(1976), 54 Cal.App.3d 988 [accident reports prepared by store manager and management level employee privileged under Chadbourne as a matter of law. Trial court order of production rev'd.]
Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333[employee witness statement not protected]
Sierra Vista Hospital v. Superior Court(1967), 248 Cal.App.2d 359 [confidential incident report sent to adjuster, not part of medical record, required by insurance company in case of potential litigation]
Alpha Beta Co. v Superior Court (1984),157 Cal.App.2d 818, 826 [VP & Gen'l Counsel verified complaint on information and belief but refused to answer questions at deposition; court parsed questions requring answers to some [facts, what meant by verified pleading, whether invetigator hired] and denying to others [content of communications]
Jessup v. Superior Court (1957), 151 Cal.App.2d 102, 109 [employee statement not privileged]
State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [claims adjuster to house counsel to outside counsel]
Upjohn Co. v. United States (1981), 449 U.S. 383 [Corporate control group test rejected in federal courts; two way communication need recognized and need to obtain information or give legal advice to corporation may involve communications with persons below upper eschelon management; interviews and communications with mid-level executives by Gen. and Outside Counsel acting as lawyers; communcations directed by management to obtain facts to enable rendering of legal advice ]
Closely held corp treated same as other corp
Hoiles v. Superior Court (1984), 157 Cal.App.3d 1192 [Rejects federal Garner rule (rejection of corp AC in particular cases) & joint client arguments ; Attorney representing corp, mgmt, & control group; Tr.ct. found meeting for corporate purposes; interest of corp & majority sh identical]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [communication to majority s/h, director, pres. protected from minority s/h; Garner rule rejected; "...there is no language in the statute which justifies a distinction between corporate clients in suit against their shareholders and other clients in different circumstances."; mere assertion of fraud not enough to invoke crime fraud exception]
Garner v. Wolfinbarger (5th Cir. 1970) 430 F.2d 1093, 1101, cert. den.[based on FRE held A-C privilege could be "subject to the right of the stockholders to show cause why it should not be invoked in the particular instance." when s/h sue corp]
Hecht v. Superior Court (1987)192 Cal.App.3d 560 see below
National Football League Properties v. Superior Court(1998), 65Cal.App.4th 100, 107 [No shareholder exception to atty-client privilege; Garner Rule rejected in Calif.
Formation
Cavanaugh Nailing Mach.Co. v. Cavanaugh (1959) 167 Cal.App.2d 657[Attorney rep both in formation; tr court rev'd for excluding attorney testimony re conv. in presence of other joint client]
Hecht v. Superior Court (1987), 192 Cal.App.3d 560[tr court rev'd for not compelling attorney to ans re conversation during formation of corp; joint client relationship continued after incorporation until ouster of one principal ]De Los Santos v. Superior Court(1980), 27 Cal.3d 677 [guardian ad litem is holder]
Moeller v. Superior Court (1997), 16 Cal.4th 1124 [trustee]
HLC Properties, Ltd. v. Superior Court (2005), 35 Cal.4th 54, 24 Cal.Rptr.3d 199 [personal representative] When the personal representative of a deceased client is discharged there is no holder to assert the attorney client privilege
Bing Crosby owned various businesses that he managed with the assistance of employees during life. His executor, as personal representative, succeeded as holder of the privilege per Evid. C. § 953(c) and continued to run the businesses until the properties were transferred to a limited partnership, HLC, which brought a contract action regarding royalties against MCA. HLC asserted the attorney-client privilege as to communications between employees of the decedent and decedent's attorneys. The trial court held there was no holder of the privilege to assert it, the appellate court reversed but the Supreme Court upheld the trial court and reversed the appellate court.Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 [6th Dist .4/29/04 ] Former management cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.
Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 [new mgmt & bankruptcy trustee]
Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123, 674 N.E.2d 663 [successor mgmt in corp buyout]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [successor corporation after merger is holder of privilege of corp that fails to exist by virtue of merger]
Information transmitted between lawyer and client
In the course of that relationship
In confidence
so far as the client is aware
by means which discloses info to no 3d persons other than
those present to further interest of client
those to whom disclosure reasonably necessary
Includes legal opinion & advice given
Facts not protected; communications of fact of transmission protected
Greyhound v. Superior Court(1961), 56 Cal.2d 355, p.397 [ "...it has been held that what an attorney observes and hears from his client is not necessarily privileged (Grand Lake Drive In v. Superior Court, supra), and that nonprivileged matter which comes into the attorney's possession via a privileged document may be subject to disclosure even though the entire document is not (idem; Unger v. Los Angeles Transit Lines, 180 Cal.App.2d 172 [4 Cal.Rptr. 370, 5 Cal.Rptr. 71])"..."Moreover a party may not silence a witness by having him reveal his knowledge to the litigant's attorney (City & County of San Francisco v. Superior Court, supra, 37 Cal.2d 227, 238). In the Grand Lake opinion (supra, at p. 127) this proposition was stated as follows: "Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. [Citation.] Obviously, a client may be examined on deposition or at trial as to the facts of the case, whether or not he has communicated them to his attorney. [Citation.] While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney." This court approved and adopted this language in San Francisco Unified Sch. Dist. (supra, 55 Cal.2d 451) in which it was said, at page 457: "We hold that the forwarding to counsel of nonprivileged records, in the guise of reports, will not create a privilege with respect to such records and their contents where none existed theretofore."]
Wells Fargo Bank v. Superior Court (Boltwood) (2000) 22 Cal.4th 201p. 210 ["Knowledge that is not otherwise privileged does not become so merely by being communicated to an attorney."]
Scripps Health v. Superior Court (2003), 109 Cal.App.4th 529 [Factual nature of communication irrelevant and facts themselves may be discoverable but not the communication which was the subject of the motion. Incident report primarily for purpose of communicate to house counsel found to be protected by attorney - client privilege in accord with Chadbourne and Sierra Vista cases. Trial court factual finding of reporting being primarily for accident prevention were rejected.]
State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, p.639 [facts & knowledge of employee gained through privileged communications not protected; communications between attorney& client through an agent is protected; facts of transmission of item protected; independent facts not protected e.g. meeting, persons present, subject matter]
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003) 2003 Cal. App. LEXIS 1804, 113 Cal. App. 4th 1377. ["The privilege does not protect "independent facts related to a communication; that a communication took place, and the time, date and participants in the communication." (State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625, 640.) Further, the privilege "does not protect disclosure of underlying facts which may be referenced within a qualifying communication" (id. at p. 639), and it does not extend to individuals who are no more than witnesses to the matter at issue in the litigation. (Martin v. Workers' Comp. Appeals Bd. (1997) 59 Cal.App.4th 333, 345.) "'Knowledge which is not otherwise privileged does not become so merely by being communicated to an attorney. . . . While the privilege fully covers communications as such, it does not extend to subject matter otherwise unprivileged merely because that subject matter has been communicated to the attorney.'" (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 397.) "[T]ransmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists." (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 176.) Documents that are independently prepared by a party "do not become privileged communications . . . merely because they are turned over to {Slip Opn. Page 13} counsel." (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 119 (Wellpoint).)"]Holm v. Superior Court (1954), 42 Cal.2d 500 [picture of bus; witness statement; report]
In re Navarro (1979), 93 Cal.App.3d 325
Wellpoint Health Networks Inc.v. Superior Court(1997), 59 Cal.App.4th 110
Coy v. Superior Court(1962), 58 Cal.2d 210
Martin v. Worker's Compensation Appeals Board(1997), 59 Cal.App.4th 333, 345
People v. Lee (1970), 3 Cal.App.3d 514, 527
Triple A Machine Shop v. State (1982), 213 Cal.App.3d 131 143
Grosslight v. Superior Court (1977), 72 Cal.App.3d 502,506
Wilson v. Superior Court (1957), 148 Cal.App2d 433
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227
Chicago Title Ins.Co v. Superior Court(1985), 174 Cal.App.3d ll42. at p. 1149
Mitchell v. Superior Court(19 ), 37 Cal.3d 591 at p. 599
State Farm Fire & Casualty v. Superior Court(1997), 54 Cal.App.4th 625, p.641
See also Upjohn Co v. U.S.(1981) 449 U.S. 383 ["The privilege only protects disclosure of communications; it does not protect disclosure of the underlying facts by those who communicated with the attorney:
'[T]he protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different [449 U.S. 383, 396] thing. The client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communications to his attorney.' Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (ED Pa. 1962)."]
Delivery to attorney
Delivery to of unprivileged communication to attorney does not make it privileged
D.I. Chadbourne v. Superior Court
Alpha Beta Co v. Superior Court
1995 amendment to EC 952 re cell p[hone, electronic transmission
Presumption EC 917
Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557
State Farm v. Superior Court(1997), 54 Cal.App.4th 625 p.639
BP Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240, p.1262
Not if overheard because knowingly made in presence of unrelated 3rd party [see EC 912 re voluntary disclosure to 3rd party]
People v. Poulin (1972), 27 Cal.App.3d 54 [bailiff]
People v. Cox (1968), 263 Cal.App.2d 176,188 [police matron]
People v. Castiel(1957), 153 Cal.App.2d 653, 659 [court reporter]Client intent governs
City & County of San Francisco v. Superior Court(195 ), 37 Cal.2d 227
Intent re: legal services required
Collette v. Sarrasin (1920)184 Cal.283[attorney acting as scrivener insufficient; prior AC not proof of AC for particular t/a]
No privilege if client intends matter to be conveyed to others
People v. Dubrin (1965), 232 Cal.App.2d 674, 680 ["A communication made by a client to his attorney, made with the intent that the communication be conveyed to another, is not privileged. (Solon v. Lichtenstein, 39 Cal.2d 74 "]
Documents reflecting communications
Gordon v. Superior Court (1997), 55 Cal.App.4th 1546, 1557 [checks and check stubs mentioned but not decided. "Of course, some communications are not "confidential" and it may be that business checks payable to a client or others on the client's behalf are not privileged. (Evid. Code, § 952; and see People v. Chapman (1984) 36 Cal.3d 98, 110; see also Baird v. Koerner (9th Cir. 1960) 279 F.2d 623 [95 A.L.R.2d 303]) Assuming without deciding that Gordon's canceled checks are not privileged documents, the check stubs may be privileged if the attorney has used them for recording privileged information. (People v. Meredith (1981) 29 Cal.3d 682, 693 .)]
Communications other than oral & written statements
City & County of San Francisco v. Superior Court (1951), 37 Cal.2d 227,.235 [actions, signs, almost any act, handwriting specimen, showing a scar or token]
Mitchell v. Superior Court (1984), 37 Cal.3d 591 [Tr.Ct rev'd for ordering answer to depo question that assumed an attorney-client communication; court notes that the privilege protects communications beyond oral and written statements; e.g. fact of transmissions of documents or evidence citing In Re Jordon]
Suezaki v. Superior Court(1962),, 58 Cal.2d 166, 178 [movies of Plt taken by investigator hired by attorney not protected by AC]
Holm v. Superior Court(1954), 42 Cal.2d 500[actions, signs & other means of communication covered]
Benge v. Superior Court (1982), 131 Cal.App.3d 336 [What happened at meeting; almost any act done by client before attorney; uncommunicated impressions & conclusions of attorney]]
Wellpoint Health Networks v. Superior Court(1997), 59 Cal.App.4th 110
In Re Navarro (1979), 93 Cal.App.3d 325
In Re Jordon(1974), 12 Cal.3d 575, 580 [ printed material transmitted by attorney to client e.g. news articles, copies of cases, draft pleadings]
People v. Superior Court(1987), 192 Cal.App.3d 32
Estate of Kime (1983), 144 Cal.App.3d 246,255
Ex parte McDonough(1915), 170 Cal.230.234Untransmitted or received communications
See above re unretained counsel
Holm v. Superior Court(1954), 42 Cal.2d 500[intended for further communication to attorney]
Calif. Bus. & Prof. Code §6149
Communications w/ identifying information deleted
Wilson v. Jefferson(1985), 163 Cal.App.3d 952[WP & AC rejected re case files, copies of letters w/ names deleted, limitations and other precautions, form letters etc. when seeking specific, highly relevant documents]
Existence of Attorney -Client relationship generally not protected
State Farm Fire & Casualty
Nowell v. Superior Court (1963), 223 Cal.App.2d 652
Mitchell v. Superior Court(1984), 37 Cal.3d 591
Montebello Rose Co. v. ALRB (1981), 119 Cal.App3d 1 [must be acting in capacity of attorney]
ExceptionsRusso, Johnson et al v. Superior Court l9l CA3d1514
People v. Perry(1972), 7 Cal.3d 756Client names normally not protected
Brunner v. Superior Court (1959), 51 Cal.2d 616 [TP action]
Willis v. Superior Court(1980), 112 Cal.App.3d 277 [Fee dispute between lawyers representing client; Distinguished by Hooser]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [citing People v. Chapman (1984), 36 Cal.3d 98,110 amd Hays v. Wood(1979), 25 Cal.3d 772, 785]
Tien v. Superior Court (Tenet Healthcare Corp.) (2006) , 139 Cal.App.4th 528. Names of putative class member contacting counsel. By agreement, a sample of putative class member employees were invited to contact plaintiff's counsel and defendant sought the names etc. of those who did and plaintiffs sought a protective order. 24 of 82 objected to disclosure, some because they feared retaliation. The appellate courts affirmed the trial court's overruling of the attorney-client privilege objection because disclosure of names of persons contacting counsel "would reveal nothing confidential." The trial court did not mention but the appellate court overruled the work product objection holding "Plaintiffs' counsel was merely the passive recipient of some telephone calls. Therefore, the trial court's discovery order does not violate the attorney work product doctrine."
The trial court was reversed on privacy grounds: "... we conclude that the privacy rights ...outweigh Tenet's need for the discovery."
Client names protected if reveal confidential information
Rosso, Johnson et al v. Superior Court( 191 Cal.App.3d 1414 [revealing name of Dalkon Shield users responding to attorney ad reveals nature of problem] criminal attorney ? tax attorney ?
Cf Scull v. Superior Court(1988), 206 Cal.App.3d 784[psych patient names protected]
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [exception if disclosure would implicate client in unlawful activities]Client names may be protected by Right to Privacy
Hooser v. Superior Court (2000), 84 Cal.App.4th 997, 1005 [no compelling need for disclosure shown]
Subject matter of communication not protected
Lohman v. Superior Court (1978), 81 Cal. App.3d 90[waiver re conversation with one attorney Not waiver as to 2d attorney re subj.]
State Farm Fire & Casualty v. Superior CourtDisclosure of subject matter not a waiver
Mitchell v. Superior Court (1984), 37 Cal.3d 591
Transamerica Title Ins. Co. v. Superior Court(1987), 188 Cal.App.3d 1047
Southern California Gas v. PUC(1990), 50 Cal.3d 31McCain v. Phoenix Resources (1987), 185 Cal.App.3d 575
Miller, Morton Caillat & Nevis v. Superior Court(19 )169 Cal.App.3d 552[Only documents generated after general partnership formed subject to joint client exception; client entitled to entire file
WHO MAY CLAIM PRIVILEGE [Evid.Code 954]
guardian ad litem
De Los Santos v. Superior Court(1980), 27 Cal.3d 677
successor trusteeMoeller v. Superior Court (1997), 16 Cal.4th 1124
bankruptcy trustee
Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 re new mgmt & bankruptcy trustee.
successor corporate management
Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 [6th Dist . 4/29/04 ] Former management cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.” The court of appeal rejected two “novel” arguments: that the insurance company defending the lawsuit was the real holder and de facto management and had tendered the issue; that the holder had no real interest in asserting the privilege.Commodity Futures Trading Comm'n v. Weintraub (1985), 471 US 343 re new mgmt & bankruptcy trustee. Tekni-Plex, Inc. v. Meyner v. and Landis (1996), 89 N.Y.2d 123, 674 N.E.2d 663
guardian ad litem
de los Santos v. Superior Court(1980), 27 Cal.3d 677
Lawyer at time of communication (if holder exists & not instructed otherwise)
Duty to assert Evd.C 955
Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 [6th Dist .H026113; (Hon. William J. Elfving, Santa Clara County, Filed 4/7/04; pub. order 4/29/04 ] Former counsel had duty to assert when successor corporation had not waived. Former management cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege.
Benge v. Superior Court (1982),131 Cal.App.3d 336, p.344[attorney must claim unless otherwise instructed]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 [attorney must claim without further instruction; corp client had merged into successor corp that was the successor holder]
Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71 [Holder of privilege has right to assert privilege in proceeding without intervening as a party]
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [Sip Opinion p.29. Under the Common Interest Doctrine only the party who is the holder of the privilege can assert it. The recipient of privileged documents lacks standing to assert the underlying privilege.]
See also Forced Election below
Communication must be tendered
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377 p.23 of slip opinion
Mitchell v. Superior Court(1984), 37 Cal.3d 591, 603 [actual conversation must be directly at issue; not just attorney as conduit of information; alleging emotional distress that may have resulted from attorney communication of dangers of DBCP in drinking water was not tender of issue of those communications]
Miller v. Superior Court(1980), 111Cal.App.3d 390 HELD: Alleging date of discovery in case was not tender of issue or otherwise a waiver of attorney client communications relevant to the statute of limitations issue. Issue insufficient to find tender of issue of conversations with attorneys consulted after event; parties state of mind is in issue not what her attorney told her Alleging date of discovery is not waiver of attorney-client privilege re content of communication between attorney and client that may relate to date of discovery of facts for cause of action. Sof L was potential or actual issue in case. Plaintiff revealed fact that communication had occurred and that was not issue but refused to reveal letters and memorandum between plaintiff and counsel. ]
Lohman v. Superior Court(1978) 81 Cal.App.3d 90 [raising statute of limitations not waiver of communications with attorney; waiver re one attorney not waiver re all]Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 Former management cannot waive corporate attorney-client privilege. Writ issued vacating trial court order compelling former corporate counsel to reveal advice to corporate client. The successor corporation after a merger and holder of the privilege under Ev.C.953(d) had not waived the privilege. Former management who were defendants raised an “advise of counsel” defense; but, the court held “Former management of a merged company does not hold the merged company’s attorney-client privilege and may not waive the attorney-client privilege post-merger.”
Southern Calif. Gas Co. v. PUC(1990), 50 Cal.3d 31 [advice of counsel must be tendered as issue; not implied from inference that it should have been considered; not just reliance; citing Merrit, Mitchell and Aetna cases]
Aetna Casualty & Surety v. Superior Court(1984), 153 Cal.App.3d 467 [declaratory relief re coverage and cross complaint re bad faith not tender of issue of advice of counsel or of attorney opinion by Ins.Co.; not raising defense of advice of counsel only that such advice was correct]
Transamerica Title Insur CO v. Superior Court(1987), 188 Cal..App.3d 1047, 1053 [ letter from attorney to def. reciting facts and advising declaratory defense c/a to avoid bad faith claim; advice of counsel only raised as defense re filing of declaratory relief c/a; "What constitutes a significant part of the communication is a matter of judicial interpretation; however, the scope of the waiver should be determined primarily by reference to the purpose of the privilege. "; not waiver re all communications; limit to subject for which advice of counsel raised]Merritt v. Superior Court(1970), 9 Cal.App.3d 721 [implied waiver by injecting issue of attorney state of mind in bad faith negotiations]
Transamerica Title Insur CO v. Superior Court(1987), 188 Cal.App.3d 1047 [recognized but not applied to facts in the case]
Estate of Kime(1983), 144 Cal.App.3d 246, 249 [attorney to be called as witness]Defense of adequacy of investigation & remedial efforts to sex harassment not waiver of AC or WP
Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217[ investigation by outside HR "consultant" communicating with in house counsel]
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110[attorney hired to conduct investigation]Issue of case tendered by holder inconsistent with assertion of privilege
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386, [claiming dgs from attorney malpractice not waiver of communications with 2d attorney subsequently hired who defendant asserts was responsible for dgs.due to lack of mitigation; same re Lohman case]
Chicago Title Ins. CO v. Superior Court (1985), 174 Cal.App.3d ll42 at p. 1154 [ dual rationale: tender of issue & house counsel not acting as attorney; ]2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377, 1394 ["The attorney-client or attorney work product privilege may be impliedly waived by placing the contents of the privileged communications at issue in the case. (Mitchell, supra, 37 Cal.3d at p. 604; Wellpoint, supra, 59 Cal.App.4th at p. 129.) "Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed." (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292.)"]
Wellpoint Health Networks Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [Since the trial court did not rule on the issue of waiver by tender of the issue of adequate investigation, the appellate court did not rule on the issue. "We further hold that resolution of the waiver issue is dependent on the claims asserted in the complaint and the defenses raised thereto. As there was neither a complaint nor an answer on file when the trial court made its ruling, the order compelling discovery was premature." The trial court had concluded that the attorney conducting the investigation was not acting as an attorney but as an investigator and that that the attorney client and work product protection could not apply. It was reversed due to a lack of evidence to support that conclusion. However, App Ct provided analysis and opinion on the waiver issue:. “...the employer's injection into the lawsuit of an issue concerning the adequacy of the investigation where the investigation was undertaken by an attorney or law firm must result in waiver of the attorney-client privilege and work product doctrine. With this proposition, we agree."
"If a defendant employer hopes to prevail by showing that it investigated an employee's complaint and took action appropriate to the findings of the investigation, then it will have put the adequacy of the investigation directly at issue, and cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy. The defendant cannot have it both ways. If it chooses this course, it does so with the understanding that the attorney-client privilege and the work product doctrine are thereby waived."
Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217 [Trial court reversed when it found waiver of privilege "where the employer pleads the adequacy of its prelitigation investigation into the claimed misconduct as a defense in the action." "We therefore hold that, if an employer has produced the substance of relevant in-house investigations performed by nonattorney personnel and seeks only to protect specific communications between those personnel and the employer's attorneys, the protections afforded by the law for communications between attorneys and their clients are not waived by the employer's pleading of the adequacy of its prelitigation investigation as a defense to an action for employee discrimination or harassment.****...we hold that where a nonattorney has conducted an in-house investigation of employee complaints and the employee has been afforded full discovery of all aspects of that investigation with the exception of specified communications and documents protected by the attorney-client privilege and the work product doctrine, then no waiver of either the attorney-client privilege or the work product doctrine has been made."
2,022 Ranch, LLC v. Superior Court (Chicago Title Ins. Co.) (2003)113 Cal. App. 4th 1377, 1395 ["The scope of an implied waiver must be "narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver." (Transamerica Title Ins. Co. v. Superior Court (1987)188 Cal.App.3d 1047, 1052.)"]
Wellpoint Health Networks, Inc. v. Superior Court (1997), 59 Cal.App.4th 110 [tendering issue of adequacy of investigation may waive AC re attorney conducting investigation]
Transamerica Title Insur CO v. Superior Court(1987), 188 Cal.App.3d 1047 [scope of waiver limited to advice given as to particular decision when such advice will be raised as defense]
Kaiser Foundation Hospitals v. Superior Court(1998), 66 Cal.App.4th 1217
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386 [claiming dgs from attorney malpractice not waiver of communications with 2d attorney subsequently hired who defendant asserts was responsible for dgs.due to lack of mitigation; same re Lohman case]
Refreshing recollection not a waiver
Sullivan v. Superior Court(1972), 29 Cal.App.3d 64
Mize v. Atcheson Topeka & Santa Fe Ry(1975) 46 Cal.App.3d 436Voluntary Disclosure of significant part of communication [EC §912]
See below re persons to whom disclosure can be made w/o waiver
Limited: not total waiver; limit to communications or subject matter disclosedOwens v. Palos Verdes Monaco (1983) 142 Cal.App.3d 855,869 [client introduced attorney notes re conversations with and items received from other parties, working drafts of the contract, and a telex re procede with deal; tr court found waiver of AC & WP re those subjects only; waiver of privilege limited to communications revealed; no total waiver re deal; affirmed; distinguishing Jones v. Superior Court(1981), 119 Cal.App.3d 534 re waiver of physician-patient communications re pregnancy and ingestion of DES; not re lifetime of treatment]
Court ordered disclosure not waiver: coerced , involuntary
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386 [compliance w/o seeking court review not consent]
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d 579
p.595 [involuntary production of records not a waiver]
O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal. App.4th, 563, at p.577 [ "O'Mary forgets that discovery is coercion. The force of law is being brought upon a person to turn over certain documents."]No waiver by admitting subject discussed with attorney
Mitchell v. Superior Court. (1984), 37 Cal.3d 591
Transamerica Title Ins CO v. Superior Court(1987), 188 Cal.App.3d 1047 [client reliance on advice of counsel defense; tr court rev'd for allowing discovery of attorney's notes, memoranda, and other documents relating to legal advice given;
scope of the waiver narrowly construed & determined by reference to the purpose of the privilege
Southern Calif. Gas.Co. v. PUC (1990), 50 Cal.3d 31No waiver by testifying to facts that might have been discussed with attorney
Maas v. Municipal Court(1985), 175 Cal.App.3d 601 [criminal defendant subpoena of witness's attorney quashed; claims waiver by agreement to testify fully; must be free, knowing, and unambiguous waiver; testimony as to facts that may have been communicated is not equivalent to testimony as to communication; consent to disclosure must be unambiguously manifested; waiver of a privilege must be a voluntary and knowing act, done with sufficient awareness of the relevant circumstances and likely consequences; hold written agreement to testify was not waiver of AC]
Waiver by testimony re matter that could only come from AC communication.
National Steel Products v. Superior Court (1985), 164 Cal.App.3d 476
People v. Dubrin (1965), 232 Cal.App.2d 674,680 [waiver regarding matters within scope of testimony by attorney testifying; can cross examine within scope of direct exam]
Winegar v. Gray (1962), 204 Cal.App.2d 303,310 [client elicited its attorney's testimony]No "joint defense privilege" recognized as such in California; but see "Common Interest Doctrine" below
Raytheon v. Superior Court (1989), 208 Cal.App.3d 683
See Kerns Construction re WP waiver by revealing contents of expert report
See International Insurance Co. re waiver of WP by insurance CO voluntarily disclosing docs to former agent to refresh recollection
3rd persons to whom disclosure permitted: [Ev C §§ 912(d), 952]
Person to whom communication reasonably necessary
for transmission of information to attorney
for accomplishment of purpose for which lawyer consulted
Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.) (2007) , Cal.App.4th [Oct. 11, 2007.] [Trial court reversed for employing definitions that did not include disclosures as permitted by Ev. Code Sec.952]
Common Interest Doctrine
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874 [At p.16 of slip opinion: "... it is essential that participants in an exchange have a reasonable expectation that information disclosed will remain confidential." The court held the doctrine does not create or enlarge any privilege; it impacts on the issue of waiver by disclosureof documents or other matter that is privileged on its own but is disclosed to a another party. At p.18 of slip opinion "[It] applies only to those documents and communications already protected from disclosure by the attorney-client privilege and the attorney work product doctrine, and it simply confirms the parties' agreement not to waive any applicable privileges by virtue of sharing privileged information on issues of common interest."]
STI Outdoor v. Superior Court (Eller Media Co.) (2001) 91 CA4th 334,341 [The Court of Appeal reversed the trial court and found there was no waiver when three documents protected by attorney-client privilege were revealed by opposing sides in the final negotiations of a contract. The exchange was made to facilitate their final negotiations and finalize the contract terms after they had reached a basic agreement. The Courts held at page 341 there was no waiver of the privilege when “...documents prepared by counsel, which were circulated between two parties bound by an offer and acceptance in contemplation of a binding, detailed license agreement [and] a transmittal letter between the parties discussing the topic of the legal memoranda. [were disclosed and]...the disclosure of such documents was reasonably necessary to further the interests of both parties in finalizing negotiations for the license agreement.”]
<>Insurance Co. of North America v. Superior Court(1980), 108 Cal.App.3d 758, 771 [intercorporate interests; affiliated officers & employees; parent/sub; ward; trust benef; at p. 771 "To sum up, we construe section 952 to mean that attorney-client communications in the presence of, or disclosed to, clerks, secretaries, interpreters, physicians, spouses, parents, business associates, or joint clients, when made to further the interest of the client or when reasonably necessary for transmission or accomplishment of the purpose of the consultation, remain privileged. [citations]"]
Armenta v. Superior Court (James Jones Co.) (2002)101 Cal.App.4th 525. Work Product case. When parties on one side entered into a “joint prosecution agreement” qualified work product applied to expert's testing and report and prevented opposing party from interviewing or using reports or test results of experts. The effective date of the agreement preceded the retention and report which was covered by the agreement. The court found the expert consultation was the result of joint collaboration and was joint work product that could not be waived by only only party. In addition, at p.534, the court found the agreement protected the information: “The joint prosecution agreement likewise provides full protection to such information. Parties with common interests may share confidential information without waiving applicable protections. (U. S. ex rel. Burroughs v. DeNardi Corp. (S.D. Cal. 1996) 167 F.R.D. 680, 686.)”
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 214[discussed in WP context but SC seems to equate with AC on this issue."[T]he attorney's absolute work product protection," however, "continues as to the contents of a writing delivered to a client in confidence." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260; see 2 Jefferson, supra, § 41.15, p. 894].) This is because "the client has an interest in the confidentiality of the work product ...." (2 Jefferson, supra, § 41.15, p. 894.) So, too, do other attorneys representing the client, such as Wells Fargo's litigation counsel, White & Case. "The protection [of the work product doctrine] precludes third parties not representing the client from discovery of [protected] writing[s]." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260.)]
Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 588. [Cooke v. Superior Court (Cooke) (1978) 83 Cal.App.3d 582 , 147 Cal.Rptr. 915 ["Mrs. Cooke's counsel claimed with respect to the eight documents herein involved: ... that they were not privileged documents because they were communicated to persons other than Mr. Cooke's counsel in the dissolution case. ...Mrs. Cooke points to some evidence, contained in depositions of various parties, that copies of the documents may have been sent to Mr. Cooke's son, to an outsider (Jeanne Williams) and to other persons. This contention is without merit. Admittedly, some of the documents were sent to attorneys who represent Mr. Cooke in matters other than the dissolution action. But that does not defeat the privilege. The evidence which the trial court accepted was that all of the alleged recipients were either attorneys who represented Mr. Cooke in some capacity, or were members of his family or business associates who were legitimately kept informed of the progress of a lawsuit that directly involved the business with which they were associated. The law is that privilege extends to communications which are intended to be confidential, if they are made to attorneys, to family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interests of the litigant. (See §§ 952 and 917 of the Evid. Code and the official comment to those sections; and see Witkin, Cal. Evidence (2d ed. 1966), §§ 807, 810, 811.) We cannot overturn the factual findings of the trial court that the eight documents all fall within that rule."]
Business adversaries
STI Outdoor v. Superior Court (Eller Media Co.) (2001) 91 CA4th 334,341 [no waiver when 3 privileged documents were disclosed after parties who had enterred agreement and were negotiating final terms and disclosure was done to facilitate final negotiations.]
Oxy Resources California LLC v. Superior Court (Calpine Natural Gas LP) (2004), 115 Cal.App.4th 874[Joint defense or confidentiality agreements do not create or expand the privilege and only show there was no intent to waive the privilege. Case remanded to trial court to conduct in camera review of each document to determine whether disclosure reasonably necessary to accomplish purpose: general conclusions based on status of business negotiations or litigation not basis for determination.]
Government agency
McKesson HBOC, Inc. v. Superior Court (State of Oregon) (2004), 115 Cal. App. 4th 1229 [disclosure to SEC not reasonably necessary though both had interest in determining source of accounting irregularities. The court suggested sharing of information is not permitted based on “overlapping interests” when an adversarial relationship exists and there is no “alignment of interest”.]Expert but testimony or designation as witness could be waiver
National Steel Products v. Superior Court(1989), 208 Cal.App.3d 683
Bro-Tech Corp. v. Thermax, Inc., 2008 WL 724627 (E.D. Pa. Mar. 17, 2008) (Data revealed to expert for purpose of obtaining legal advice and accomplishing purpose for which attorney was consulted is not waiver. Court recognized simultaneous dual capacity of expert as expert and consultant.)
Co-defendant
Raytheon v. Superior Court (1989), 208 Cal.App.3d 683 [no joint defense privilege in Cal. but disclosure to co-defendant may be justified if necessary to accomplish purpose of consultation]
Subsequent attorney
National SteelProducts v. Superior Court (1985), 164 Cal.App.3d 476
Spouses, family members, business affiliates, agents, attorneys
Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192, p.1200 [presence of spouses of officers & directors at meeting not waiver]
Cooke v. Superior Court(1978), 83 Cal.App.3d 582 p.588 [AC disclosure by spouse to family member etc not waiver as to other spouse]
Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, at p.771 [matters of joint concern; disclosure to executives of affiliated companyies reasonably necessary to further interest of client]
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201[discussed in WP context. "[T]he attorney's absolute work product protection," however, "continues as to the contents of a writing delivered to a client in confidence." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260; see 2 Jefferson, supra, § 41.15, p. 894].) This is because "the client has an interest in the confidentiality of the work product ...." (2 Jefferson, supra, § 41.15, p. 894.) So, too, do other attorneys representing the client, such as Wells Fargo's litigation counsel, White & Case. "The protection [of the work product doctrine] precludes third parties not representing the client from discovery of [protected] writing[s]." (BP Alaska Exploration, Inc. v. Superior Court, supra, at p. 1260.)]
Benge v. Superior Court (1982) [union members & family members at informational meeting conducted by attorney retained by union]Guardian ad litem
De Los Santos v. Superior Court (1980), 27 Cal.3d 677
See also Insurance CO of North America v. Superior Court(1980)[dictum re ward, trust beneficiary etc.]CF Parent communication to psych for minor protected
Grosslight v. Superior Court (1977), 72 Cal.App.3d 502
Claim adjuster
Soltani-Rastegar v. Superior Court (1989), 208 Cal.App.3d 424 [Def owner made statement to claims adjustor prior to litigation and prior to attorney assignment to case. Declaration said the statement was made in confidence to CSAA for purpose of defending and for transmittal to an attorney. Tr court ordered production of written statement and notes reasoning there was no attorney relationship. Rev'd
Gene Compton's Inc v.Superior Court (1962), 205 Cal.App.2d 365 [accident report to insurance co.]
Travelers Ins. CO v. Superior Court (1983), 143 Cal.App.3d 436[accident report to insurance co.]
Heffronv. Los Angeles Transit Lines (1959), 170 Cal.App.2d 709 [accident report to insurance co.]
Rico v. Mitsubishi Motors Corp. (2004) , REVIEW GRANTED 116 Cal.App.4th 51 [Case follows State Compensation and narrowly construes Aeorojet. A document, essentially considered to be clearly attorney notes and protected by absolute work product, was obtained and used by opposing counsel. Both opposing counsel using the protected document and his expert were disqualified. At p.24. of the slip opinion the court stated: "State Fund provided the decisional authority that was lacking in Aerojet. For cases following State Fund, there is an ethical duty immediately to disclose inadvertently received privileged information. More precisely, an attorney who inadvertently receives plainly privileged documents must refrain from examining the materials any more than is necessary to determine that they are privileged, and must immediately notify the sender, who may not necessarily be the opposing party, that he is in possession of potentially privileged documents."
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 211[disclosure in good faith belief that law required it not a waiver; "An honest mistake of law, where the law is unsettled and debatable, both militates against a finding of waiver (citing B P Alaska) and offers a possible basis relief...."]
State Compensation Insurance Fund v. Telanoff (1999), 70 Cal.App.4th 644 [No waiver by inadvertent disclosure; docs reviewed but overlooked by attorney& paralegal; not on privilege log; 273 pages produced with 3 boxes of previously produced docs; attorney disclosing docs had reviewed docs and maintained privilege log; "obviously", "patently" and "plainly" privileged; B of P on party asserting inadvertence to demonstrate it; IF (1) attorney receives docs and (2) they are obviously privileged and inadvertently disclosed, notify opponent and refrain from further examination; tr court awarded sanctions which were not upheld only becasue the appellate court felt the standards were not clear in California; disting Aerojet re discoverable facts, clear privilege, clear inadvertence in production, damages.]
Aerojet General Corp v.Transport Idemnity Ins. (1993), 18 Cal.App.4th 996, 1004, 1006 ["The attorney-client privilege is a shield against deliberate intrusion; it is not an insurer against inadvertent disclosure." Inadvertant disclosure of attorney client document sent to client and ultimately to opposing counsel; underlying facts in doc. were discoverable; 128.5 sanctions sought for investigating & plugging leak: Tr.Ct.granted, Ct.Ap. rev'd.on sanctions issue; dictum at p. 1006 suggests innocent party can use document: "We think that the manner in which DeVries obtained the information in this case-through documents inadvertently transmitted to his client-is irrelevant to resolution of the issue. Assuming no question of waiver, the problem would be no different if DeVries had obtained the same information from someone who overheard respondents discussing the matter in a restaurant or a courthouse corridor, or if it had been mistakenly sent to him through the mail or by facsimile transmission. Once he had acquired the information in a manner that was not due to his own fault or wrongdoing, he cannot purge it from his mind. Indeed, his professional obligation demands that he utilize his knowledge about the case on his client's behalf" ]
O'Mary v. Mitsubishi Electronics America Inc. (1997), 59 Cal. App.4th, 563, at p.577 [doc inadvertently produced immediate return requested upon discovery and in limini motion made; "O'Mary forgets that discovery is coercion. The force of law is being brought upon a person to turn over certain documents. Inadvertent disclosure during discovery by no stretch of the imagination shows consent to the disclosure: It merely demonstrates that the poor paralegal or junior associate who was lumbered with the tedious job of going through voluminous files and records in preparation for a document production may have missed something. O'Mary invites us to adopt a "gotcha" theory of waiver, in which an underling's slipup in a document production becomes the equivalent of actual consent. We decline. The substance of an inadvertent disclosure under such circumstances demonstrates that there was no voluntary release." Rev'd on other issues; matter remanded for further consideration re consensual production]
Great American Surplus Lines Ins. v. Ace Oil Co. (E.D.Cal.1988), 120 F.R.D.
533 [attorney-client privileged documents produced by reinsurance CO
pursuant to subpoena when holder of privilege was unaware and did not
authorize production. No waiver or privilege by delivery to reinsurer.
Protective order promptly sought upon discovery of production and documents ordered to be returned. Parties ordered to refrain from making reference to documents, disclosing or summarizing in any manner any portion of the documents.]
People v. Gardner (1984), 151 Cal.App.3d 134 [no waiver of physician-patient privilege by inadvertent or accidental disclosure]
See also the 2001 tentative recommendation to the Law Revision Commission to insert "intentional" into the waiver by disclosure provisions
see also article re technical access to unencrypted e-mail that questions reliance on existing opinions
Joshua M. Masur "Safety in Numbers: Revisiting the Risks to Client Confidences and Attorney-Client Privilege Posed by Internet Electronic Mail," (First prize, 1999 Berkeley Technology Law Journal Comment Competition) 14 Berkeley Tech. L.J. 1117 (1999)Stadish v. Superior Court (1999), 71 Cal.App.4th 1130 [assertion as part of general objection to document request satisfies timing requirement]
Korea Data Systems Co. Ltd. v. Superior Court (1997), 51 Cal.App.4th 1513 [general assertion in timely manner satisfies timeliness requirement]
Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181 Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.
Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 [dictim; case management order. "... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]
People v. Poulin (1972), 27 Cal.App.3d 54 [bailiff testified to conversation overheard between attorney and client without objection]
Supression of erroneously disclosed information
Lohman v. Superior Court (1978), 81 Cal.App.3d 90, at p.99 [attorney-client communication should be suppressed; though not made,motion to strike would in tr court would have been futile]
Aerojet General Corp v. Transport Indemnity Ins.. (1993) 18 Cal.App.4th 996 [CCP 128.5 monetary sanctions against law firm rev'd; No issue re AC or suppression of AC privileged document (attorney to file memo) obtained by mistake and used by opposing counsel; documents had arrived by circuitous manner in complex case involving multitude of documents; No state bar rule prohibited conduct, ABA opinion noted, complexity of case and numerous documents; no claim of misconduct in receipt of document and court does not address duty to return docs;
People v. Vargas (1975) 53 Cal.App.3d 516,527 [attorney disclosed confidential communication in absence of client-perhaps as a tactic; court should have disregarded and excluded testimony]Technicalities resulting in injustice & sanctions disfavored
Blue Ridge Ins. Co. v. Superior Court (1988) 202 Cal.App.3d 339 [if timely asserted privilege should not be defeated by technicality such as lack of verification] see also Korea Data Systems Co. Ltd. v. Superior Court (1997) [same re objections to document production]
Motown Record Corp. v. Superior Court ( 155 Cal.App.3d [sanction for one day late in complying with court order too severe]
Hernandez v. Superior Court (Acheson Industries, Inc.) (2003)112 Cal.App.4th 285, 294 ["... a forced waiver of the attorney-client privilege is not an appropriate sanction for a tardy "privilege log," so long as the privilege is invoked in a timely manner. (See Korea Data Systems Co. v. Superior Court, supra, 51 Cal.App.4th at p. 1517.)]
Best Products v. Superior Court LA (2004), 119 Cal.App.4th 1181 Boiler plate objections preserve attorney-client and work product.
Defendant served boilerplate objections, including attorney-client and work product, in response to document requests and interrogatories seeking identification of documents. It did so in order to gain time, rather than seek a court ordered extension. After meeting and conferring and discussing the claims of privilege without any success, Plaintiff sought responses without objections. Then, Defendant served further responses with the same objections and claimed the motion was moot. Although plaintiff requested and the trial court overruled the objections on the merits based on the failure of defendant to meet its burden of proof, the appellate court determined the trial court had based its decision on a finding of waiver. [Although it is not clear from the decision, it may have been based on Plaintiff's reliance on the wrong code section in making the motion i.e. a motion to compel rather than a motion to compel further answers.] The appellate court then followed Korea Data Systems Co. v. Superior Court (1997) 51 Cal.App.4th 1513 holding that boilerplate objections raising attorney-client objections are not waivers even though they fail to comply with the requirements of the C.C.P. The trial court was instructed to enter a new order compelling defendant to further answer.Waiver as to one attorney not waiver as to others
Lohman v. Superior Court (1978), 81 Cal. App.3d 90
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 206 [fiduciary duty of trustee does not overcome privilege; no implied exceptions or policy considerations; other states approach rejected]
Hoiles v. Superior Court (1984) p.1199[ exception based on Federal Garner rule rejected]
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100 [follows Hoiles and rejects Garner Rule; Ev C. precludes tr court from carving out exceptions to attorney client privilege]Venture Law Group v. Superior Court (2004), 118 Cal. App. 4th 96 [6th Dist . 4/29/04 ] Former management cannot waive corporate attorney-client privilege. Burden of proof shifts to proponent of waiver or exception once elements of attorney-client communication established by propnent of privilege.Wellpoint Health Networks v. Superior Court (1997), 59 Cal.App.4th 110 [BP on proponent of exception]
Geilim v. Superior Court (1991)Federal "Garner Rule" rejected: allow SH to show cause why AC should be
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100
Hoiles v. Superior Court , 157 Cal.App.3d 1192 [rule rejected]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93
Cf. Goldstein v. Lees(1975), 46 Cal.App.3d 614
Crime - Fraud Exception (see Pen.C 1524 search warrant attorney files; 5th Amendment)
Purpose, scope
Abbott v. Superior Court (1947) ["...unless the communication is for the purpose of obtaining assistance in the commission of the crime or fraud or in furtherance thereof, it is not made admissible by the exception provided in this section."]
People v. Clark (1990) [limited scope; limit to obtaining assistance; enable or aid in commission or furtherance; not communication of intent]Scope of exception: documents must have reasonable relation to ongoing fraud
People v. Clark (1990), 50 Cal.3d 583 [limited exception]
B P Alaska Exploration v. Superior Court (1988), 199 Cal.App.3d 1240
State Farm Fire & Casualty v. Superior Court
Client intent
Glade v. Superior Court (1978), 76 Cal.App.3d 738 [privilege lost if abused by client; attorney misuse of information to defraud others not waiver of client privilege]
Nowell v. Superior Court(1963), 223 Cal.App.2d 652 [need evid of client purpose before communication]
People v. Clark (1990), 50 Cal.3d 583 ["The attorney need not himself be aware of the illegality involved; it is enough that the communication furthered, or was intended by the client to further, that illegality."]
Geilim v. Superior Court (1991), 234 Cal.App.3d 166 [client seeks or obtains legal assistance to plan or perpetuate a crime or fraud]
BP Alaska Exploration, Inc. v. Superior Court (1988), 199 Cal.App.3d 1240Burden of Proof on party asserting exception
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100
Nowell v. Superior Court(1963), 223 Cal.App.2d 652
Miller Morton et al v. Superior Court(19 )169 Cal.App.3d 552
Geilim v. Superior Court (1991), 234 Cal.App.3d 166
Cooke v. Superior Court(1978)Prima facie evidentiary showing required
Nowell v. Superior Court(1963), 223 Cal.App.2d 652 [mere allegations of fraud etc insufficient; require prima facie showing of client purpose & intent ]
Miller Morton et al v. Superior Court(19 )169 Cal.App.3d 552 [ factual showing of client's purpose before communication received]
State Farm v. Superior Court(Taylor)(1997) Cal.App.4th [Declarations from former claims adjustor and member of litigation dept. of Ins. CO submitted declarations re Ins.Co. instructed employees to forge signatures, lie, destroy docs
National Football League Properties v. Superior Court(1998), 65 Cal.App.4th 100
BP Alaska Exploration, Inc. v. Superior Court(1988), p.1240 [Attorney part of team and communication part of scheme perpetrating fraud; Fraud evolves from communication]
Dickerson v. Superior Court(1982),135 Cal.App.3d 93 ["...a mere allegation of fraud is insufficient to make the exception applicable. "[I]t would be destructive of the privilege to require disclosure on the mere assertion of opposing counsel. 'Accordingly, evidence should be presented, to make a prima facie showing that this was the client's purpose, before the communication is received.'" (Nowell v. Superior Court (1963)...."]
Probable cause for search warrant not prima facie showing of crime
People v. Superior Court p.1766-67 [Criminal investigation of attorney& issuance of search warrant deos not obviate claim of AC or establish prima facie showing(p.1768)]
Geilim v Superior Court (1991), 234 Cal.App.3d 166, 175
Joint Client Exception [Ev.C. §962]
Joint Client: 2 clients retain or consult attorney on matter of common interest
Factual & evidentiary issue
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 209 [beneficiary of trust not joint client as a matter of law based on the fiduciary relationship but the client relationship might be established by a factual showing]
Hecht v. Superior Court [Conduct & intent critical]Wortham & VanLiew v. Superior Court (1987) 188 Cal.App.3d 927[Attorney for partnership respresents all partners; fid duty of partners; purely personal & private matters of one partner may be privileged but not communications re partnership]
Hecht v. Superior Court 192 Cal.App.3d 560
Johnson v. Superior Court 38 Cal.App.4th 463, 474-5
Miller, Morton, et al v. Superior Court (19 )169 Cal.App.3d 552[rep promoter until GP formed & then rep all partners; rejects theory of promoter as agent for all during formative stages]
Hoiles v. Superior Court(1984), 157 Cal.App.3d 1192 [Treat same as any corp; exception inapplicable to case since minority SH didn't consult corp counsel re same subject matter ]
Ins. Co./ Insured / Cumis Counsel
Joint client: Ins. CO and Insured
Glacier General Assur. Co. v. Superior Court (1979), 95 Cal.App.3d 836 at p. 841 ["matter of common interest" includes any communication re handling calim against insured; Plt/assignee of insured's bad faith claim sought prod of litig file in prior action ]
Glade v. Superior Court(1978), 76 Cal.App.3d 738
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d579No reservation of rights
Reservation of rights may destroy joint client relationshipAttorney selected by carrier to rep client is not retained or consulted by ins co. w/in 962
Rockwell v. Superior Court (1994), 26 Cal.App.4th 1255at p.1267
At time of selection ?
After selection ?
If opportunity to have cumus counsel ?Coverage issues
Attorney hired to advise Ins CO re coverage not attorney for insured
Aetna Casualty & Surety Co. v. Superior Court (1984), 153 Cal.App.3d 467 [no joint client prior to acceptance of coverage]
State Farm Fire & Casualty Co. v. Superior Court (1988),206 Cal.App.3d 1428Exception limited to commun re matter of common interest
Glacier General Ins. v. Superior Court (1979)95 Cal.App.3d 836 at p.842 [any communication re handling claim against insured]
Wells Fargo Bank v. Superior Court (2000), 22 Cal.4th 201, 209 [beneficiary of trust not joint client soley due to relationship as beneficiary]
Waiver by all holders required
American Mutual Liab. Ins. Co. v. Superior Court(1974), 38 Cal.App.3d579
Glade v. Superior Court(1978),76 Cal.App.3d 738Communications made in the course of that relationship
If made in presence of other joint client: privileged as to strangers but not as to either client and attorney
Cavanaugh Nailing Mach. Co. v. Cavanaugh (1959), 167 Cal.App.2d 657at p. 660 [R.D.confidentiality lacking ]
If made outside presence of other joint client normally privileged
Glacier General Ins. v. Superior Court (1979), 95 Cal.App.3d 836 at p. 841 [Exception applies & no privilege between clients; limit to matters of common interest]
Glade v. Superior Court(1978), 76 Cal.App.3d 738 [only applies when both clients present]
Cavanaugh Nailing Mach.Co. v. Cavanaugh at p. 660
Morris v. Moran (1960), 179 Cal.App.2d 463 at p. 469 [dictum re privilege remains when one communicates ]
See Aetna, Wortham, , Rockwell
Normally both claims of privilege must be overcome
Cf. Physician - Patient re mother /child
Paley v. Superior Court(1993), 18 Cal.App.4th 919
Jones v. Superior Court(1981), 119 Cal.App.3d 534Breach of Duty Exception [EC 958]
Limited to attorney breaching duty: not subsequent attorney
Schlumberger Ltd. v. Superior Court (1981), 115 Cal.App.3d 386
Miller v. Superior Court(1980), 111 Cal.App.3d 390, 392
Calrson, Collins, Gordon & Bold v. Banducci(1967), 257 Cal.App.2d 212Limit to communications by client claiming breach
Glade v. Superior Court(1978), 76 Cal.App.3d 738
Deceased client exception [EC 957]
All claim through deceased client
RD claimant claim through estate rather than as adversaries
decedent would want intent knownPaley v. Superior Court(1955), 137 Cal.App.2d 450 modified by statute
Relationship between deceased & dec attorney not contestant and its attorney
Fletcher v. Superior Court 1996), 44 Cal..App.4th 773 p.778
A&M Records v. Heilman(1977), 75 Cal.App.3d 554 [conditional order re exclusion of testimony or evid at trial not produced at depo]
Newsom v. City of Oakland (1974), 37 Cal.App.3d 1050
Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 292
Can't claim privilege in discovery & waive at trial
A&M Records Inc v. Heilman (1977), 75 Cal.App.3d 554 [conditional order prohibiting production of testimony or evidence at trial when not produced at depo]
Campaign v. Safeway Stores Inc. (1972), 29 Cal.App.3d 362 p. 365Preclusion orders
Mylan Laboratories Inc. v. Soon-Shiong (1999), 76 Cal.App.4th 71 [nonparties can assert privilege and obtain a preclusion order based on the privilege without intervening; CF preclusion orders based on the inherent power of the court to control litigation abuses is limited to parties]