B312794
Cal. Ct. App.Nov 17, 2021Background:
- In 2017 seven-year-old Camila Magallanes was injured at school; prior counsel prepared ~20 pages of intake documents that included a statement that a friend pushed her causing the fall.
- New counsel (Blair & Ramirez) inadvertently uploaded those intake documents to Dropbox links shared with three retained experts and later emailed an expert file to defense counsel that included the intake material.
- At an expert deposition defense counsel attempted to use portions of the intake documents; plaintiff’s counsel interrupted, asserted privilege, and both sides agreed not to use or transmit the materials until the court ruled.
- The Los Angeles Unified School District moved ex parte to deem the privilege waived; the trial court found waiver and the District disclosed the material to an expert the same day.
- Magallanes sought relief by writ; the Court of Appeal issued an alternative writ directing the trial court to vacate its waiver ruling or show cause; after the trial court reaffirmed waiver, the Court of Appeal granted the writ and ordered the trial court to deny the District’s application.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether inadvertent disclosure by plaintiff's counsel waived attorney-client privilege | No — disclosure was inadvertent, documents were conspicuously privileged, counsel promptly sought protection; privilege not waived by attorney error | Yes — disclosure to experts and defense counsel constitutes waiver | Held: No waiver from inadvertent disclosure by counsel; client did not consent to disclosure (State Comp. controls) |
| Whether disclosure to retained experts (later designated as witnesses) impliedly waived privilege | No — experts were not provided materials to assist on disputed issues; the privileged sentence was not relevant to experts’ retained subjects | Yes — disclosure to an expert witness who will testify can constitute implied waiver | Held: No implied waiver; information was not relevant to the experts’ subject matter and unlikely to be used at trial (Shadow distinction applied) |
| Whether plaintiff’s counsel’s failure to immediately seal/claw back or perfect protective measures constitutes waiver by the client | No — failures were counsel’s, not client’s; no evidence client knew or intended waiver; law does not impute attorney negligence to client for waiver | Yes — counsel’s conduct and slow action evince waiver and client intent | Held: No imputation of counsel’s negligence to client; client privilege preserved absent affirmative client conduct inconsistent with claiming privilege |
| Whether the trial court properly imputed attorney knowledge/negligence to the client to find waiver | Plaintiff: Imputation is improper; privilege is client-held and statutory | Defendant: Court relied on authority imputing attorney knowledge in other contexts | Held: Imputation rejected here; court may not create an exception to the privilege by imputing attorney negligence to client |
Key Cases Cited
- Costco Wholesale Corp. v. Superior Court, 47 Cal.4th 725 (privilege is absolute; courts may not create exceptions)
- State Comp. Ins. Fund v. WPS, Inc., 70 Cal.App.4th 644 (inadvertent disclosure by counsel does not waive client privilege)
- McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (privilege is legislative and not subject to court-created exceptions)
- Shadow Traffic Network v. Superior Court, 24 Cal.App.4th 1067 (disclosure to an expert who will testify can imply waiver when information is relevant and likely used)
- Sanders v. Superior Court, 34 Cal.App.3d 270 (expert testimony subjects and relevance inform waiver analysis)
- McKesson HBOC, Inc. v. Superior Court, 115 Cal.App.4th 1229 (legal questions about waiver reviewed independently when facts undisputed)
- Ardon v. City of Los Angeles, 62 Cal.4th 1176 (disclosure requires some measure of choice or deliberation to constitute waiver)