Chubb & Son v. Superior Court
176 Cal. Rptr. 3d 389
Cal. Ct. App.2014Background
- Tracy Lemmon, an attorney employed at Bragg & Kuluva who represented Chubb’s insureds, sued her former employers and Chubb for disability discrimination and related claims after being terminated.
- Lemmon served discovery seeking documents relating to her performance and termination; Chubb withheld or redacted documents as privileged or confidential client information of third-party insureds and refused to let either party’s counsel review some materials.
- The disputed materials included client feedback letters, internal case reviews, emails/memos, and Lemmon’s performance reviews; Chubb produced some items redacted and logged others as privileged.
- The trial court ordered that each party may disclose allegedly privileged/confidential third-party communications to their own litigation counsel (subject to protective limits) and required Chubb to provide responsive documents to its counsel to identify privilege and complete production.
- Chubb petitioned for writ of mandate, arguing the order improperly created a nonstatutory exception to the attorney-client privilege and unlawfully allowed disclosure of nonparty clients’ confidences to opposing-party counsel; the Court of Appeal denied the petition.
Issues
| Issue | Plaintiff's Argument (Lemmon) | Defendant's Argument (Chubb) | Held |
|---|---|---|---|
| Whether parties may disclose allegedly privileged or confidential third‑party client communications to their own litigation counsel for purposes of litigating a wrongful‑termination case and resolving discovery | Lemmon: Limited disclosure to each party’s own counsel is necessary for counsel to evaluate claims, assert privileges properly, and prepare the case; disclosure can be limited and protected by ethics and court orders | Chubb: Order creates an implied, nonstatutory exception to Evidence Code privileges; third‑party clients’ confidences should not be shown even to parties’ counsel | Held: Court approved limited disclosure to each party’s counsel under protective conditions; this does not create a new statutory exception and is consistent with precedent and professional obligations |
| Whether Fox Searchlight and General Dynamics allow disclosure when the confidences belong to nonparty clients rather than the opposing party | Lemmon: No meaningful distinction; State Bar guidance supports allowing limited disclosure to counsel where necessary and protected | Chubb: Fox Searchlight addressed employer (party) confidences, not nonparty clients; nonparty status makes a difference | Held: No cognizable distinction here—limited disclosure of nonparty clients’ confidences to litigation counsel is permissible with protections and ethical duties protecting further disclosure |
| Whether Evidence Code § 958 or other statutory exceptions are required for this disclosure | Lemmon: Fox Searchlight didn’t rely solely on § 958; limited disclosure stands on fairness, General Dynamics, and protective measures | Chubb: Fox Searchlight relied in part on § 958; since § 958 doesn’t apply, Fox Searchlight is inapposite | Held: Whether § 958 applies need not be resolved; Fox Searchlight’s rationale (fairness, protective measures, role of counsel’s duties) independently supports limited disclosure |
| Whether the order undermines attorney‑client privilege and client confidence duties generally | Lemmon: Disclosure to counsel is narrowly tailored, preserves confidentiality via ethics and court order, and aids proper assertion/defense of privilege | Chubb: Permitting such disclosure erodes clients’ trust and could chill frank communications to counsel | Held: The order appropriately balances interests; disclosure is limited, court‑ordered, and aids protection of the privilege rather than destroys it |
Key Cases Cited
- General Dynamics Corp. v. Superior Court, 7 Cal.4th 1164 (Cal. 1994) (in‑house counsel may pursue wrongful discharge claims but courts must protect client confidences using protective measures)
- Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294 (Cal. Ct. App. 2001) (former in‑house counsel may disclose employer‑client confidences to her own attorneys for preparation of wrongful‑termination litigation under limited, protected conditions)
- Mitchell v. Superior Court, 37 Cal.3d 591 (Cal. 1984) (attorney‑client privilege promotes candor; privilege is statutory and must be strictly observed)
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (Cal. 2009) (attorney‑client privilege is robust; courts cannot imply exceptions to statutory privileges)