Three Years Wait for Fait Accompli

Nelson v. Tucker Ellis, LLP, No. A153661 (D1d3 May 5, 2020)

Three years ago, the Court of Appeal determined that an attorney’s work product belongs to the firm, not the attorney. Thus when Firm received a subpoena for documents implicating the work product of a former Attorney, it didn’t need to seek his permission before producing the documents.

The prior ruling was a writ ordering reversal of a summary judgment ruling in Attorney’s favor. On remand, the trial court granted Firm’s motion for judgment on the pleadings, finding that the Court of Appeal’s ruling was inconsistent with Attorney’s theory of liability, and, in the alternative, that the claims were barred by the litigation privilege. Attorney appealed, and the Court of Appeal affirms.

Principally, the Court holds that the prior ruling appellate ruling that Firm held the work product privilege constituted law of the case. In its strong version, the law of the case doctrine holds that earlier appellate opinions in a case bind subsequent proceedings in the trial court or future appeals to an equal court. Here, attorney alleged several different causes of action—interference with contract, invasion of privacy, negligence, conversion. But each claim had at least one element that was premised on Firm’s having wrongfully disclosed Attorney’s work product. It follows that prior ruling on appeal was fatal to all the claims.

In the alternative, the claims were also barred by the litigation privilege. Civil Code § 47(b) bars any tort liability grounded on litigation-related communications. Here, Attorney’s claims were based on Firm’s having produced documents in response to a third party subpoena in a litigation. Although not every act Firm took was necessarily communicative, the non-communicative acts, like selecting what documents to produce in response, were predicate to the communicative act of producing the documents. Given the broad construction afforded to § 47(b), Firm’s acts were, on the whole, communicative enough to fall within the privilege.

Finally, the Court of Appeal affirms that Attorney didn’t need to be afforded leave to amend his complaint. Attorney did not identify any facts that would preclude the Firm’s ownership of the work product protection from cutting the legs out from under his claims. So any amendment would have been futile.

Affirmed.