Tucker Ellis v. Super. Ct.
A148956
| Cal. Ct. App. | Jun 21, 2017Background
- Evan C. Nelson was an attorney employed by Tucker Ellis LLP from 2007–2011; he authored emails and other documents for the firm while working with retained consultants (Gradient) on mesothelioma-related research.
- Employment materials (agreement, handbook, policy manual) stated firm ownership of records, emails, and firm technology systems.
- After Nelson left, Tucker Ellis was served with an out-of-state subpoena seeking communications with Gradient; Tucker Ellis reviewed and produced certain documents, including emails Nelson authored; Nelson then sent a clawback letter asserting work-product protection.
- Nelson sued Tucker Ellis for various torts, alleging the firm breached a legal duty to protect his attorney work product; the trial court granted summary adjudication finding Tucker Ellis owed Nelson a duty to prevent disclosure without his permission.
- Tucker Ellis petitioned for writ relief; the Court of Appeal considered whether the law firm or the former employee-attorney is the holder of the Code of Civil Procedure §2018.030 work-product privilege for documents created by the attorney in the scope of employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who holds the §2018.030 attorney work-product privilege for documents an attorney created while employed by a law firm? | Nelson: the creating attorney is the privilege holder and thus Tucker Ellis owed him a duty to prevent disclosure without his permission. | Tucker Ellis: the firm owns the documents under Labor Code §2860 and, as the employer-owner, is the privilege holder and may disclose without the attorney’s consent. | The law firm (Tucker Ellis) is the holder of the §2018.030 work-product privilege for documents created by Nelson in the scope of his employment; no duty to secure Nelson’s permission existed. |
Key Cases Cited
- Coito v. Superior Court, 54 Cal.4th 480 (2012) (overview of California’s civil work-product statute and distinction between absolute and qualified protections)
- Hickman v. Taylor, 329 U.S. 495 (1947) (foundational U.S. Supreme Court recognition of attorney work-product protection)
- Lockyer v. Superior Court, 83 Cal.App.4th 387 (2000) (holding work-product/privilege in documents prepared by a prosecutor in the course of employment belongs to the employer office, not the individual deputy)
- Lasky, Haas, Cohler & Munter v. Superior Court, 172 Cal.App.3d 264 (1985) (discussion of attorney work-product privilege scope and holder ambiguity)
- BP Alaska Exploration, Inc. v. Superior Court, 199 Cal.App.3d 1240 (1988) (definition and scope of work product as the product of attorney effort and thought)
- People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., 20 Cal.4th 1135 (1999) (discussion of attorneys’ duty of undivided loyalty to clients)