As many of you know, the California Supreme Court has been sitting on two inadvertent disclosure cases for a long, long time. One of them, Rico v. Mitsubishi, will be released tomorrow. In that case, a lawyer came into possession of the opposing lawyer's privileged notes, either through an inadvertent mistake of the court report who scooped up a bunch of papers and handed them to the wrong lawyer or through outright misappropriation. The lawyer in receipt of the privileged material then introduced a copy as a deposition exhibit and the opposing lawyer who authored the document didn't recognize his own privilged materials and failed to immediately object. The California Court of Appeal disqualified the recipient lawyer. Let' see what the Supremes do with the case. California has no discipline rule on point, so this will be decided as a matter of common law.
A pretty amazing fact pattern -- but not nearly as amazing as the second case we're expecting from the California Supremes. In the second case, a lawyer called the opposing lawyer and left an innocent voicemail message. Unfortunately, the caller didn't hang up the phone and then launched into a highly incriminating discussion which was recorded in his opponent's voicemail messaging system. Ouch.
Your description of the facts is off. E.g., the attorney who created the notes was not at the second deposition. It is unfortunate that this case is described by the court as one of inadvertent production - it seems clear that the best inference is that the document was not produced at all but filched. The language of the court seems to be driving toward a complete abandonment of the the possibility of any waiver other than advertent. (If notice goes out anytime a possibly privileged document is encountered, waiver in inadvertent production won't be available unless the notice letter is ignored, which is likely enough to make it advertent anyway.)
Posted by: J. Bogart | December 13, 2007 at 05:14 PM