12 Cal. App. 5th 1233
Cal. Ct. App. 5th2017Background
- Evan C. Nelson, an attorney, worked at Tucker Ellis LLP from 2007–2011 and created emails and other documents in the scope of his employment dealing with expert consultants (Gradient) and scientific literature on mesothelioma.
- Employment materials (handbook, policy manual, employment agreement) stated firm records, emails, and technology systems were Tucker Ellis property.
- After Nelson left, Tucker Ellis received an out-of-state subpoena in related litigation and produced certain emails authored by Nelson that the firm withheld in part as privileged; Nelson later demanded return via a "clawback" letter.
- Nelson sued Tucker Ellis asserting causes of action including negligence and invasion of privacy, alleging the firm breached a legal duty to protect his attorney work product and that disclosure harmed his career.
- The trial court granted Nelson summary adjudication on the duty issue, ruling Tucker Ellis owed Nelson a duty to prevent disclosure of his work product without his permission; Tucker Ellis petitioned for writ relief.
- The Court of Appeal held the narrow legal question that, for documents created by an attorney-employee in the scope of employment, the employer law firm (Tucker Ellis) — not the former attorney-employee (Nelson) — is the holder of the attorney work product privilege under Cal. Code Civ. Proc. § 2018.030; therefore Tucker Ellis had no duty to obtain Nelson's permission before disclosure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who holds the §2018.030 attorney work product privilege for documents created by an attorney-employee in the scope of employment? | Nelson: the creating attorney (Nelson) is the privilege holder and Tucker Ellis had a duty to protect and not disclose his work product without his consent. | Tucker Ellis: employer owns documents under Labor Code §2860 and is the privilege holder; firm may assert or waive privilege without employee consent. | Held: Employer law firm (Tucker Ellis) is the privilege holder for documents created by its attorney-employee in scope of employment; no duty to secure the employee's permission before disclosure. |
Key Cases Cited
- Coito v. Superior Court, 54 Cal.4th 480 (Cal. 2012) (describing codified work product privilege and absolute protection for writings reflecting attorney impressions and mental impressions)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (foundational federal case recognizing attorney work product protection for attorney thoughts, impressions, and trial preparation)
- Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 264 (Cal. Ct. App. 1985) (discusses absolute vs. qualified work product protection and prior interpretations of privilege holder)
- People ex rel. Lockyer v. Superior Court, 83 Cal.App.4th 387 (Cal. Ct. App. 2000) (concluded work product/privilege claims by an employee prosecutor may belong to the employer entity depending on circumstances; analogous support for employer as privilege holder)