Tuesday, August 8, 2017

The Firm's Work Product

Tucker Ellis LLS v. Superior Court, No. A48956 (D1d3 Jun. 21, 2017)

Who owns work product? An attorney, or the firm that employs him?

This is in the context of asbestos litigation. Ten years ago, in connection with an earlier asbestos case, Lawyer had a bunch of communications with an expert firm commissioned to conduct some studies. The experts ultimately wrote an article that suggested that mesothelioma could be caused by factors other than asbestos exposure. 

Plaintiff in a new case subpoenaed Lawyer’s firm for communications with the expert shop. By that point, Lawyer had left the firm. But when he got a depo notice, he tried to claw back the emails on the grounds that they were his work product. Nobody honored the clawback. Ultimately, the emails made the rounds of the asbestos plaintiffs’ bar.

The production of Lawyer’s emails hurt his reputation. He lost his job at his new firm and he couldn’t find other work in asbestos defense. So he sued his former firm on various theories based on the premise that the emails were his work product that the firm wasn’t authorized to release over his objection. 

After getting sidetracked for a few years by a failed attempt to compel arbitration (and an appeal) and a denied anti-SLAPP motion (and an appeal) the case finally got to the nut of the question: Did the Firm owe Lawyer a duty under Code of Civil Procedure § 2018.030 to protect his work product from disclosure. The trial court said it did. Firm took a writ, which the Court of Appeal grants.

Firm says that under Labor Code § 2860—which codifies a general work-for-hire rule that an employer owns the fruits of employment other than wages—and various employment contract documents between Firm and lawyer, Firm owns Lawyer’s work product. But these rules only say who owns the emails. They don’t actually reach the question of who is the holder of the privilege. According to the court, that question turns on § 2018.030.

But unfortunately, the statute is facially silent as to who holds the privilege. In a somewhat unsatisfying analysis, the court finds various rationales to give the privilege to the Firm, not Lawyer. First, the retainer agreement for the expert shop was between the experts and the Firm, not the attorney individually. Second, there is some case law—albeit in the public sector context—that says a deputy DA couldn’t prevent disclosure of his work product when the DA consented to it. And third, enormous practical problems would arise were firms to hold duties to preserve the work product of their ex-employees and obtain permission prior to disclosure.  

Writ granted.

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