Case Number: BC633842 Hearing Date: August 08, 2018 Dept: 4

MOVING PARTY:Plaintiff Odette Cohen

RESPONDING PARTY:Defendants William Ramirez and Akhoian Enterprises, Inc.

Motion to Compel Return of Privileged and Confidential Documents Inadvertently Disclosed and to Preclude the Use of Such Documents at Trial

The court considered the moving, opposition, and reply papers.

BACKGROUND

On September 14, 2016, plaintiff Odette Cohen filed a complaint against defendants William Ramirez, Enterprise FM Trust LSR, Mr. Rooter Southbay LSE, Cal Pros, Inc., and Mr. Rooter Plumbing for motor vehicle negligence based on an incident that occurred on August 12, 2016.

LEGAL STANDARD

Evidence Code § 954 states: “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:

The holder of the privilege;

A person who is authorized to claim the privilege by the holder of the privilege; or

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.”

CCP § 2018.030 provides that, “(A) a writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. (B) The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing the party’s claim or defense or will result in an injustice.”

Evidence Code §953 identifies holders of privilege to mean “(A) the client, if the client has no guardian or conservator. (B) a guardian or conservator of the client, if the client has a guardian or conservator. (C) The personal representative of the client if the client is dead, including a personal representative appointed pursuant to Section 12252 of the Probate Code. (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.”

Evidence Code §912(a) provides that, “Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-client privilege), 980 (privilege for confidential marital communications), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1033 (privilege of penitent), 1034 (privilege of clergy member), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim 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 legal standing and the opportunity to claim the privilege.”

Evidence Code §912(c) states that, “a disclosure that is itself privileged is not a waiver of any privilege.”

Evidence Code §912(d) provides that, “A disclosure in confidence of a communication that is protected by a privilege provided by Section 954 (lawyer-client privilege), 966 (lawyer referral service-client privilege), 994 (physician-patient privilege), 1014 (psychotherapist-patient privilege), 1035.8 (sexual assault counselor-victim privilege), 1037.5 (domestic violence counselor-victim privilege), or 1038 (human trafficking caseworker-victim privilege), when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer, lawyer referral service, physician, psychotherapist, sexual assault counselor, domestic violence counselor, or human trafficking caseworker was consulted, is not a waiver of the privilege.”

Waiver of the work product protection “is generally found under the same set of circumstances as waiver of the attorney-client privilege—by failing to assert the protection, by tendering certain issues, and by conduct inconsistent with claiming the protection.” De Luca v. State Fish Co., Inc. (2013), 217 Cal. App. 4th 671, 688.

In Rico v. Mitsubishi Motors (2007), 42 Cal. 4th 807, the California Supreme Court adopted the test for the ethical requirements of a lawyer who inadvertently received privileged documents established by the Second Appellate District of California in State Compensation Insurance Fund v. WPS Inc. (1999) 70 Cal. App. 4th 644. The court requires “When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified.” State Fund at 656, 657.

DISCUSSION

Plaintiff requests an order compelling defendants and their counsel to return to plaintiff’s counsel all copies of plaintiff’s February 16, 2017 statement to State Farm Insurance in their possession, custody or control, and to delete all digital copies of such documents from the computers and servers. Plaintiff also requests an order that defendants be precluded from introducing or referencing the contents of the State Farm statement, directly or indirectly, at time of trial. Plaintiff also seeks an order disqualifying the Coleman Law Group from acting as counsel for defendants.

On January 26, 2018, defendants issued a subpoena for documents pertaining to plaintiff from State Farm Insurance, requesting ______________.
Plaintiff argues that during response to defendants’ subpoena of business records from plaintiff’s insurer, State Farm, a transcribed statement from plaintiff to insurer, as well as an audio file of the statement itself, were inadvertently disclosed to defendants. Plaintiff argues that the documents are protected by attorney client privilege and/or the attorney work product doctrine. Plaintiffs argue that an insured’s report of an auto accident to his or her automobile liability insurer is protected from disclosure in discovery when the “dominant purpose of the report is to defend against litigation arising out of the accident.” Payless Drug Store v. Superior Court (1976) 54 Cal. App. 3rd 988, 991; Travelers Insurance Companies v. Superior Court (1989) 208 Cal. App. 3d 424, 427. Plaintiff claims that defendants’ counsel did not follow the requirements for return of documents inadvertently disclosed set forth by Rico v. Mitsubishi Motors or State Compensation Insurance Fund v. WPS Inc. that counsel who receives documents that appear privileged “should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged”. State Fund at 656, 657. Plaintiff claims that since the documents are privileged, defendants should be precluded from the use of the documents at trial, or disqualified from legal representation of defendants.

Defendants oppose the motion on the grounds that the transcribed recorded statement and the audio recording of the statement were intentionally produced in response to two valid subpoenas, therefore Rico is inapplicable. Defendants further argue that even if the statements were inadvertently produced as plaintiffs claim, plaintiff waived any potential privilege attached to these documents under Evidence Code §912. Defendants claim that the transcribed recorded statement was provided to two of plaintiff’s experts, who reviewed the document and included the document on their expert file. Defendant asserts that during deposition of both experts, the transcribed recorded statement was addressed specifically by defendants’ counsel’s questions, and at no point did plaintiff object that the document was privileged. Defendants contend that the parties agreed on June 26, 2018 to produce both clients’ respective statements. Defendants state that both plaintiff’s counsel and State Farm confirmed the production of the audio recording to defense counsel. Defendants claim that the interests of justice require that the jury be provided with all material evidence, and that the document at issue may impeach the credibility of plaintiff. Defendants argue that the document is relevant and material because it proves plaintiff has provided two materially different statements regarding the circumstances of the collision. Defendants argue that there is no basis to disqualify Colman Law Group, as mere exposure to confidential documents itself is insufficient to warrant an attorney’s disqualification.

The court finds that the documents were not inadvertently disclosed. The documents were contemplated when responding to two valid subpoena requests. Defendants have presented evidence that both plaintiff’s counsel and State Farm contemplated the specific audio recording, including confirming its receipt by defendant. However, even if the documents had been inadvertently received by defendants, plaintiff’s counsel’s conduct waived privilege as to the documents. Plaintiff’s counsel requested copies of the same documents received from State Farm in response to the subpoenas. Plaintiff’s counsel provided copies of the document to at least two of plaintiff’s experts. Plaintiff’s experts reviewed the transcribed statement, and listed the document in their expert files. At the deposition of both experts, pointed questions were asked to the experts about that specific document, and at no time did plaintiff’s counsel object that the document was privileged. Defendant has sufficiently presented evidence that there was a mutual agreement between the parties to exchange statements from clients to their respective insurers. The activity of using the audio file that plaintiff claims is privileged to obtain discovery documents from defendants is not consistent with an attorney’s belief that the information in that document is privileged by either attorney-client privilege or work product doctrine. Thus, the court finds that plaintiff is not entitled to the return of the documents, as their disclosure was not inadvertent and counsel waived privilege as to these documents.

The motion is therefore DENIED.

The court DENIES plaintiff’s request that defendants’ counsel Colman Law Group be disqualified from legal representation of defendants.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: August 8, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court