Clark v. Superior Court
196 Cal. App. 4th 37
| Cal. Ct. App. | 2011Background
- VeriSign hired Clark as chief administrative officer in 2007 and Clark signed VeriSign’s NDA; he was prohibited from removing or misusing confidential or privileged information.
- Clark’s employment ended December 31, 2008, and he filed suit against VeriSign in January 2009, with Higgs, Fletcher & Mack LLP representing him.
- In 2009, VeriSign alleged Clark and Higgs possessed and used VeriSign’s privileged documents, including the Bond memo, and demanded their return and cessation of use.
- Clark produced documents with privileged designations in February 2010; VeriSign identified numerous privileged items and sought return and destruction.
- VeriSign moved to disqualify Higgs in fall 2010, arguing improper possession, review, and use of privileged materials violating Rico and State Fund.
- The trial court disqualified Higgs, ordered return/destruction of documents, and issued protective measures to preserve integrity of the proceedings; Clark challenged by writ.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was substantial evidence Higgs received privileged documents | Clark contends privilege claim is suspect; in camera review needed. | VeriSign presented substantial evidence that communications were between VeriSign employees and VeriSign counsel constituting privileged material. | Substantial evidence supported receipt of privileged documents |
| Whether Higgs excessively reviewed the privileged materials | Higgs limited review and properly safeguarded materials. | Higgs conducted more than necessary, reviewing contents to determine dominant purpose. | Substantial evidence supported excessive review of privileged documents |
| Whether disqualification was an appropriate remedy | Disqualification is draconian; protective orders could cure taint. | Disqualification necessary to protect public trust and prevent prejudice. | Disqualification not abuse of discretion; prophylactic remedy upheld |
Key Cases Cited
- Rico v. Mitsubishi Motors Corp., 42 Cal.4th 807 (2007) (adopts State Fund obligations for inadvertent possession of privileged material)
- State Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999) (confidentiality duties when documents appear privileged; remedial framework)
- Coscto Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (2009) (dominant purpose approach to privilege; no content review required to rule on privilege)
- SpeeDee Oil Change Systems, Inc. v. Superior Court, 20 Cal.4th 1135 (1999) (paramount concern to preserve public trust; balance client rights and ethics)
- Oaks Management Corp. v. Superior Court, 145 Cal.App.4th 462 (2006) (disqualification where there is a genuine likelihood of affecting the outcome)
- Chicago Title Ins. Co. v. Superior Court, 174 Cal.App.3d 1142 (1985) (contextual discussion on in-house privilege and waiver considerations)