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Calif. Supreme Court: Don't Use Your Opponent's Notes
The Recorder
December 17, 2007
Taking advantage of an opposing lawyer's privileged documents, even if they're accidentally obtained, is a major no-no, the California Supreme Court ruled Thursday.
To drive its point home in the anxiously awaited ethics case, the court unanimously upheld El Segundo, Calif., lawyer Raymond Johnson's disqualification from an automobile rollover case for using his opponent's notes to impeach expert witnesses.
"An attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged," Justice Carol Corrigan wrote. "Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation."
Johnson represented a family who sued Mitsubishi Motors Corp., Mitsubishi Motor Sales of America and the California Department of Transportation following the 1998 rollover crash of a Mitsubishi Montero sport utility vehicle. Eleven-year-old Denise Rico died in the accident and her 18-year-old sister, Zerlene, was partially paralyzed.
Before the case reached trial, Johnson came into the possession of opposing attorney James Yukevich's notes concerning a meeting with expert witnesses. Johnson copied the 12-page document, prepared by one of Yukevich's paralegals, and used it during a subsequent deposition to discredit Yukevich's experts.
Johnson claims the notes were given to him accidentally by a court reporter, while Yukevich insists they were illicitly taken from his co-counsel's briefcase during an earlier deposition.
San Bernardino County Superior Court Judge Ben Kayashima eventually ruled that Johnson obtained the document inadvertently. But he still disqualified Johnson and his legal team from the case for breaching his ethical duties by using another lawyer's confidential work product.
Riverside's 4th District Court of Appeal affirmed in 2004.
Johnson and his appellate lawyer, Norman Pine, had argued that Johnson was only following the rationale of Aerojet-General Corp. v. Transport Indemnity Insurance Co. In that 1993 ruling, San Francisco's 1st District held that attorneys who accidentally obtain opposing counsel's documents are duty-bound to use the information to their client's advantage.
The Supreme Court rejected that argument, saying Johnson should have heeded State Compensation Insurance Fund v. WPS Inc. That 1999 ruling by Los Angeles' 2nd District held that attorneys who obtain opponents' documents should examine them just enough to see whether they are privileged, and if they are, notify the opposing counsel immediately.
"In applying [that] rule," Justice Corrigan wrote, "courts must consider whether reasonably competent counsel, knowing the circumstances of the litigation, would have concluded the materials were privileged, how much review was reasonably necessary to draw that conclusion and when counsel's examination should have ended."
Corrigan ruled that Johnson's disqualification was warranted because his use of Yukevich's notes "undermined the defense experts' opinions and placed defendants at a great disadvantage. Without disqualification of plaintiffs' counsel and their experts, the damage caused by Johnson's use and dissemination of the notes was irreversible."
Yukevich, a partner in L.A.'s Yukevich Calfo & Cavanaugh, couldn't be reached on Thursday.
Pine, a partner in Sherman Oaks, Calif.'s Pine & Pine, said he and his client, Johnson, were "sorely" disappointed.
"The opinion never addresses what we believe is the central question in the case: The identical document, if prepared by a declared expert, would not have even been privileged ... much less 'clearly privileged' as required by State Fund," he wrote in an e-mail to The Recorder.
Johnson also wrote he "felt that, under Aerojet, my duty was to impeach the declared experts with their own candid admissions. Had I known the document was prepared by a paralegal, I never would have used it."
The ruling is Rico v. Mitsubishi Motors Corp., 07 C.D.O.S. 14234.
