Stanford Law School - Robert Crown Law Library

Filed 12/13/07

IN THE SUPREME COURT OF CALIFORNIA

ZERLENE RICO et al.,
Plaintiffs
and
Appellants,
S123808
v.
Ct.App. 4/2 E033616
MITSUBISHI MOTORS
CORPORATION et al.,
San Bernardino County
Defendants and Respondents, )
Super. Ct. No. RCV39233

Here we consider what action is required of an attorney who receives
privileged documents through inadvertence and whether the remedy of
disqualification is appropriate. We conclude that, under the authority of State
Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644 (State Fund), an
attorney in these circumstances may not read a document any more closely than is
necessary to ascertain that it is privileged. Once it becomes apparent that the
content is privileged, counsel must immediately notify opposing counsel and try to
resolve the situation. We affirm the disqualification order under the circumstances
presented here.
1

---

FACTUAL BACKGROUND
Two Mitsubishi corporations1 (collectively Mitsubishi or defendants), and
the California Department of Transportation (Caltrans), were sued by various
plaintiffs after a Mitsubishi Montero rolled over while being driven on a freeway.
Subsequently, Mitsubishi representatives met with their lawyers, James Yukevich
and Alexander Calfo, and two designated defense experts to discuss their litigation
strategy and vulnerabilities. Mitsubishi’s case manager, Jerome Rowley, also
attended the meeting. Rowley and Yukevich had worked together over a few
years. Yukevich asked Rowley to take notes at the meeting and indicated specific
areas to be summarized. The trial court later found that Rowley, who had typed
the notes on Yukevich’s computer, had acted as Yukevich’s paralegal. At the end
of the six-hour session, Rowley returned the computer and never saw a printed
version of the notes. Yukevich printed only one copy of the notes, which he later
edited and annotated. Yukevich never intentionally showed the notes to anyone,
and the court determined that the sole purpose of the document was to help
Yukevich defend the case.
The notes are written in a dialogue style and summarize conversations
among Yukevich, Calfo, and the experts. They are dated, but not labeled as
“confidential” or “work product.” The printed copy of these compiled and
annotated notes is the document at issue here.2
Less than two weeks after the strategy session, Yukevich deposed
plaintiffs’ expert witness, Anthony Sances, at the offices of plaintiffs’ counsel,
Raymond Johnson. Yukevich, court reporter Karen Kay, and Caltrans counsel

1
Mitsubishi Motors Corporation and Mitsubishi Motor Sales of America,
Inc.
2
Because the document was confidential, the court ordered it sealed along
with relevant portions of the reporter’s transcript where the contents of the
document were discussed. The document has remained sealed since that time.
2

---

Darin Flagg were told that Johnson and Sances would be late for the deposition.
After waiting in the conference room for some time, Yukevich went to the
restroom, leaving his briefcase, computer, and case file in the room. The printed
document from the strategy session was in the case file. While Yukevich was
away, Johnson and Sances arrived. Johnson asked Kay and Flagg to leave the
conference room. Kay and Flagg’s departure left only the plaintiffs’
representatives and counsel in the conference room. Yukevich returned to find
Kay and Flagg standing outside. Yukevich waited approximately 5 minutes, then
knocked and asked to retrieve his briefcase, computer, and file. After a brief
delay, he was allowed to do so.
Somehow, Johnson acquired Yukevich’s notes. Johnson maintained that
they were accidentally given to him by the court reporter. Yukevich insisted that
they were taken from his file while only Johnson and plaintiffs’ team were in the
conference room. As a result, Mitsubishi moved to disqualify plaintiffs’ attorneys
and experts. The trial court ordered an evidentiary hearing to determine how
Johnson obtained the document.
The court reporter was deposed and denied any specific recollection of the
Sances deposition. She could not testify what she had done with the deposition
exhibits that night and could only relate her general practice. She said she
generally collects exhibits and puts them in a plastic covering. She did not
remember ever having given exhibits to an attorney. She also testified that she
had never seen the document in question. If documents other than exhibits remain
on a conference table, she leaves them there. The trial court found that the Sances
deposition took place over approximately eight hours. It was a document-intense
session and documents were placed on the conference table.
Another member of plaintiffs’ legal team submitted a declaration
supporting Johnson’s assertion that he received the document from the reporter.
3

---

The court ultimately concluded that the defense had failed to establish that
Johnson had taken the notes from Yukevich’s file. It thus ruled that Johnson came
into the document’s possession through inadvertence.
The court found the 12-page document was dated, but not otherwise
labeled. It contained notations by Yukevich. Johnson admitted that he knew
within a minute or two that the document related to the defendants’ case. He knew
that Yukevich did not intend to produce it and that it would be a “powerful
impeachment document.” Nevertheless, Johnson made a copy of the document.
He scrutinized and made his own notes on it. He gave copies to his cocounsel and
his experts, all of whom studied the document. Johnson specifically discussed the
contents of the document with each of his experts.
A week after he acquired Yukevich’s notes, Johnson used them during the
deposition of defense expert Geoffrey Germane.3 The notes purportedly indicate
that the defense experts made statements at the strategy session that were
inconsistent with their deposition testimony. Johnson used the document while
questioning Germane, asking about Germane’s participation in the strategy
session.
Defense Counsel Calfo defended the Germane deposition. Yukevich did
not attend. Calfo had never seen the document and was not given a copy during
the deposition. When he asked about the document’s source, Johnson vaguely
replied that, “It was put in Dr. Sances’ file.” Calfo repeatedly objected to the
“whole line of inquiry with respect to an unknown document.” He specifically
said that, “I don’t even know where this exhibit came from.”
Only after the deposition did Johnson give a copy of the document to Calfo,
who contacted Yukevich. When Yukevich realized that Johnson had his only

3
Johnson also used the document at the subsequent deposition of defense
expert Dennis Schneider.
4

---

copy of the strategy session notes and had used it at the deposition, he and Calfo
wrote to Johnson demanding the return of all duplicates. The letter was faxed the
day after Germane’s deposition. The next day, defendants moved to disqualify
plaintiffs’ legal team and their experts on the ground that they had become privy to
and had used Yukevich’s work product. As a result, they complained, Johnson’s
unethical use of the notes and his revelation of them to cocounsel and their experts
irremediably prejudiced defendants.
The trial court concluded that the notes were absolutely privileged by the
work product rule.4 The court also held that Johnson had acted unethically by
examining the document more closely than was necessary to determine that its
contents were confidential, by failing to notify Yukevich that he had a copy of the
document, and by surreptitiously using it to gain maximum adversarial value from
it. The court determined that Johnson’s violation of the work product rule had
prejudiced the defense and “the bell cannot be ‘unrung’ by use of in limine
orders.” Accordingly, the court ordered plaintiffs’ attorneys and experts
disqualified.5
Plaintiffs appealed the disqualification order. The Court of Appeal affirmed.

4
The trial court also held that the document fell under the attorney-client
privilege. The Court of Appeal held to the contrary. That issue is not before us
and we express no view thereon.
5
The court continued the case to provide the plaintiffs an opportunity to
retain new counsel. The court noted that it did not appear that the plaintiffs were
made privy to the document’s contents, so disqualification would be an effective
remedy, because there was no issue about the plaintiffs providing new counsel
with the information. The court also imposed a gag order on all who attended the
hearing on the motion to disqualify, specifically instructing plaintiffs’ counsel and
experts to keep the contents of the document confidential and not reveal any
information about the document to plaintiffs and their new attorneys.
5

---

DISCUSSION
Attorney Work Product
Plaintiffs contend that the Court of Appeal erred by holding that the entire
document was protected as attorney work product. We reject that contention.
The Legislature has protected attorney work product under California Code
of Civil Procedure6 section 2018.030,7 which provides, “(a) A writing that reflects
an attorney's impressions, conclusions, opinions, or legal research or theories is
not discoverable under any circumstances. [¶] (b) The work product of an
attorney, other than a writing described in subdivision (a), is not discoverable
unless the court determines that denial of discovery will unfairly prejudice the
party seeking discovery in preparing that party's claim or defense or will result in
an injustice.”
The Legislature has declared that it is state policy to “[p]reserve the rights of
attorneys to prepare cases for trial with that degree of privacy necessary to
encourage them to prepare their cases thoroughly and to investigate not only the
favorable but the unfavorable aspects of those cases.” (§ 2018.020, subd. (a).) In
addition, the Legislature declared its intent to “[p]revent attorneys from taking
undue advantage of their adversary’s industry and efforts.” (Code Civ. Proc.,
§ 2018.020, subd. (b).)

6
Unless otherwise indicated, further undesignated statutory references are to
the Code of Civil Procedure.
7
We note that the Court of Appeal relied on former section 2018 in setting
forth the work product rule. Section 2018 was repealed. (Stats. 2004, ch. 182, §
22, operative July 1, 2005.) The Legislature replaced it with sections 2018.010-
2018.080. Section 2018.040 provides the Legislature did not intend to make any
changes to the work product doctrine, referring to the new statutes as a
“restatement of existing law” that are “not intended to expand or reduce the extent
to which work product is discoverable under existing law in any action.”
6

---

Thus, the codified work product doctrine absolutely protects from discovery
writings that contain an “attorney’s impressions, conclusions, opinions, or legal
research or theories.” (§ 2018.030, subd. (a); see Wellpoint Health Networks, Inc.
v. Superior Court (1997) 59 Cal.App.4th 110, 120.) The protection extends to an
attorney’s written notes about a witness’s statements. (See Rodriguez v.
McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 649 (Rodriguez); see also
Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 135.) “[A]ny such notes or
recorded statements taken by defendants’ counsel would be protected by the
absolute work product privilege because they would reveal counsel’s ‘impressions,
conclusions, opinions, or legal research or theories’ within the meaning of [the
work product doctrine.]” (Nacht & Lewis Architects, Inc. v. Superior Court
(1996) 47 Cal.App.4th 214, 217.) When a witness’s statement and the attorney’s
impressions are inextricably intertwined, the work product doctrine provides that
absolute protection is afforded to all of the attorney's notes. (Rodriguez, supra, 87
Cal.App.3d at p. 648.)
Plaintiffs urge that the document is not work product because it reflects the
statements of declared experts. They are incorrect. The document is not a
transcript of the August 28, 2002 strategy session, nor is it a verbatim record of the
experts’ own statements. It contains Rowley’s summaries of points from the
strategy session, made at Yukevich’s direction. Yukevich also edited the
document in order to add his own thoughts and comments, further inextricably
intertwining his personal impressions with the summary. (See Rodriguez, supra,
87 Cal.App.3d at pp. 647-648.) In this regard, the trial court found: “As to the
content of the document, although it doesn’t contain overt statements setting forth
the lawyer’s conclusions, its very existence is owed to the lawyer’s thought
process. The document reflects not only the strategy, but also the attorney’s
opinion as to the important issues in the case. Directions were provided by Mr.
7

---

Yukevich as to the key pieces of information to be recorded, and Mr. Yukevich
also added his own input as to the important details, by inserting other words in
the notes. The attorney’s impressions of the case were the filter through which all
the discussions at the conference were passed through on the way to the page.”
The court concluded, “[T]his court determines that the attorney’s directions to
record only portions of the conference specific to the attorney’s concerns in the
litigation are sufficient to support the finding that the notes are covered by the
absolute work product [doctrine], as the choices in statements to record show the
thought process and are too intertwined with the document.”
Although the notes were written in dialogue format and contain information
attributed to Mitsubishi’s experts, the document does not qualify as an expert’s
report, writing, declaration, or testimony. The notes reflect the paralegal’s
summary along with counsel’s thoughts and impressions about the case. The
document was absolutely protected work product because it contained the ideas of
Yukevich and his legal team about the case. (§ 2018.030, subd. (a).)8
Ethical Duty Owed Upon Receipt Of Attorney Work Product
Because the document is work product we consider what ethical duty
Johnson owed once he received it. Plaintiffs rely on Aerojet-General Corp. v.
Transport Indemnity Insurance (1993) 18 Cal.App.4th 996 (Aerojet), to argue that
because the document was inadvertently received, Johnson was duty bound to use

8
We also reject plaintiffs’ contention that defendants waived their right to
assert the protection of the work product doctrine because they failed to make a
proper objection at Germane’s deposition. The record shows that at Germane’s
deposition, defendants’ counsel, Calfo, did not know Johnson was using the
document, so he could not raise a specific objection based on the work product
doctrine. In fact, when asked how Johnson obtained the document, Johnson told
Calfo, “It was put in Dr. Sances’ file.” Also, Calfo did make numerous objections
to the document’s use, including those where he stated that he objected “to the
exhibit as a whole” because it lacked foundation and “to this whole line of inquiry
with respect to an unknown document.” Accordingly, there was no waiver.
8

---

the nonprivileged portions of it to his clients’ advantage. This argument fails.
Aerojet is distinguishable because there are no “unprivileged portions” of the
document.
A review of Aerojet, supra, 18 Cal.App.4th 996, demonstrates that it does not
assist plaintiffs. Aerojet’s insurance brokers had sent a package of materials to
Aerojet’s risk manager. The risk manager sent them on to Aerojet’s attorney,
DeVries. Among these documents was a memo from an attorney at an opposing
law firm. It was never ascertained how opposing counsel’s memo found its way
into the package of documents. The memo revealed the existence of a witness
whom DeVries ultimately deposed. When opposing counsel learned that DeVries
had received the memo and thus discovered the witness, counsel sought sanctions.
The trial court imposed monetary sanctions under section 128.5, subdivision (a).
(Aerojet, at pp. 1001-1002.) The Court of Appeal reversed the sanctions order.
The Aerojet court first noted that DeVries was free of any wrongdoing in his
initial receipt of the document. The court also observed that the existence and
identification of the witness was not privileged. “Nor can ‘the identity and
location of persons having knowledge of relevant facts’ be concealed under the
attorney work product rule . . . . [Citations.]” (Aerojet, supra, 18 Cal.App.4th at
p. 1004.) Defendants claimed no prejudice to their case as a result of the witness’s
disclosure. Indeed, they prevailed at trial. (Ibid.) Because counsel was blameless
in his acquisition of the document and because the information complained of was
not privileged, DeVries was free to use it. (Id. at p. 1005.) Plaintiffs’ reliance on
Aerojet founders on the facts that distinguish it. Here, Yukevich’s notes were
absolutely protected by the work product rule. Thus, Johnson’s reliance on
Aeorjet is unavailing, particularly in light of the clear standard set out in State
Fund, supra, 70 Cal.App.4th 644.
9

---

In State Fund, supra, 70 Cal.App.4th 644, the plaintiff sent defendant’s
attorney (Telanoff) three boxes of documents that were identical to the documents
provided during discovery. Inadvertently, plaintiff also sent 273 pages of forms
entitled, “Civil Litigation Claims Summary,” marked as “ATTORNEY-CLIENT
COMMUNICATION/ATTORNEY WORK PRODUCT,” and with the warning,
“DO NOT CIRCULATE OR DUPLICATE.” (Id. at p. 648.) In addition, “[t]he
word ‘CONFIDENTIAL’ [was] repeatedly printed around the perimeter of the
first page of the form.” (Ibid.) When counsel discovered the mistake and
demanded return of the documents, Telanoff refused. The trial court, relying on
American Bar Association (ABA) Formal Ethics Opinion No. 92-368 (Nov. 10,
1992), imposed monetary sanctions.
The Court of Appeal framed the issue as follows: “[W]hat is a lawyer to do
when he or she receives through the inadvertence of opposing counsel documents
plainly subject to the attorney-client privilege?” (State Fund, supra, 70
Cal.App.4th at p. 651.) After determining that the documents were privileged and
that inadvertent disclosure did not waive the privilege, the court discussed an
attorney’s obligation. The Court of Appeal disagreed that the ABA opinion
should regulate Telanoff’s conduct. The court noted that the ABA Model Rules
on which the opinion was based “do not establish ethical standards in California,
as they have not been adopted in California and have no legal force of their own.
[Citations.]” (Id. at pp. 655-656.) Likewise, the court held that an “ABA formal
opinion does not establish an obligatory standard of conduct imposed on
California lawyers” (Id. at p. 656.) Thus, under the circumstances “Telanoff
should not have been sanctioned for engaging in conduct which has been
condemned by an ABA formal opinion, but which has not been condemned by any
decision, statute or Rule of Professional Conduct applicable in this state.” (Ibid.)
10

---

The State Fund court went on to articulate the standard to be applied
prospectively: “When a lawyer who receives materials that obviously appear to be
subject to an attorney-client privilege or otherwise clearly appear to be
confidential and privileged and where it is reasonably apparent that the materials
were provided or made available through inadvertence, the lawyer receiving such
materials should refrain from examining the materials any more than is essential to
ascertain if the materials are privileged, and shall immediately notify the sender
that he or she possesses material that appears to be privileged. The parties may
then proceed to resolve the situation by agreement or may resort to the court for
guidance with the benefit of protective orders and other judicial intervention as
may be justified.” (State Fund, supra, 70 Cal.App.4th at pp. 656-657.) To ensure
that its decision was clear in setting forth the applicable standard in these cases,
the court explicitly stated that it “declared the standard governing the conduct of
California lawyers” in such instances. (Id. at p. 657.)
The existing State Fund rule is a fair and reasonable approach.9 The rule
supports the work product doctrine (§ 2018.030), and is consistent with the state’s
policy to “[p]reserve the rights of attorneys to prepare cases for trial with that
degree of privacy necessary to encourage them to prepare their cases thoroughly
and to investigate not only the favorable but the unfavorable aspects of those
cases” and to “[p]revent attorneys from taking undue advantage of their
adversary’s industry and efforts.” (§ 2018.020, subds. (a), (b).)

9
We also reject plaintiffs’ contention that State Fund, supra, 70 Cal.App.4th
644, only applies to materials protected by the attorney-client privilege. The Court
of Appeal held that there was no distinction “between the attorney-client privilege
and the work product privilege in this context [because]. . . [t]he State Fund
standard applies to documents that are plainly privileged and confidential,
regardless of whether they are privileged under the attorney-client privilege, the
work product privilege, or any other similar doctrine that would preclude
discovery based on the confidential nature of the document.” We agree.
11

---

The State Fund rule also addresses the practical problem of inadvertent
disclosure in the context of today’s reality that document production may involve
massive numbers of documents. A contrary holding could severely disrupt the
discovery process. As amicus curiae The Product Liability Advisory Council, Inc.
argues, “Even apart from the inadvertent disclosure problem, the party responding
to a request for mass production must engage in a laborious, time consuming
process. If the document producer is confronted with the additional prospect that
any privileged documents inadvertently produced will become fair game for the
opposition, the minute screening and re-screening that inevitably would follow not
only would add enormously to that burden but would slow the pace of discovery to
a degree sharply at odds with the general goal of expediting litigation.”
Finally, we note that “[a]n attorney has an obligation not only to protect his
client’s interests but also to respect the legitimate interests of fellow members of
the bar, the judiciary, and the administration of justice.” (Kirsch v. Duryea (1978)
21 Cal.3d 303, 309.) The State Fund rule holds attorneys to a reasonable standard
of professional conduct when confidential or privileged materials are inadvertently
disclosed.
Here, it is true that Yukevich’s notes were not so clearly flagged as
confidential as were the forms in State Fund, supra, 70 Cal.App.4th 644. But, as
the Court of Appeal observed, “[T]he absence of prominent notations of
confidentiality does not make them any less privileged.” The State Fund rule is an
objective standard. In applying the rule, 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. (Id. at pp. 656-657.)
12

---

The standard was properly and easily applied here. Johnson admitted that
after a minute or two of review he realized the notes related to the case and that
Yukevich did not intend to reveal them. Johnson’s own admissions and
subsequent conduct clearly demonstrate that he violated the State Fund rule. We
note, however, that such admissions are not required for the application of the
objective standard in evaluating an attorney’s conduct.
Disqualification Of Counsel And Experts
The court properly applied the State Fund rule and determined that Johnson
violated it. The next question is whether disqualification was the proper remedy.
We review the court’s disqualification order for abuse of discretion. (People ex
rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th
1135, 1143.)
The State Fund court held that “ ‘[m]ere exposure’ ” to an adversary’s
confidences is insufficient, standing alone, to warrant an attorney’s
disqualification. (State Fund, supra, 70 Cal.App.4th at p. 657.) The court
counseled against a draconian rule that “ ‘[could] nullify a party’s right to
representation by chosen counsel any time inadvertence or devious design put an
adversary’s confidences in an attorney’s mailbox.’ ” (Ibid.) However, the court,
did not “rule out the possibility that in an appropriate case, disqualification might
be justified if an attorney inadvertently receives confidential materials and fails to
conduct himself or herself in the manner specified above, assuming other factors
compel disqualification.” (Ibid.)
After reviewing the document, Johnson made copies and disseminated them
to plaintiffs’ experts and other attorneys. In affirming the disqualification order,
the Court of Appeal stated, “The trial court settled on disqualification as the
proper remedy because of the unmitigable damage caused by Johnson’s
13

---

dissemination and use of the document.” Thus, “the record shows that Johnson
not only failed to conduct himself as required under State Fund, [supra, 70
Cal.App.4th 644,] but also acted unethically in making full use of the confidential
document.” The Court of Appeal properly concluded that such use of the
document 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. Under the circumstances presented in this case, the trial court did not
abuse its discretion by ordering disqualification for violation of the State Fund
rule.
Plaintiffs attempt to justify Johnson’s use of the document by accusing the
defense experts of giving false testimony during their depositions. Plaintiffs allege
that the statements attributed to the experts in the document contradicted their
deposition statements and that the experts lied about the technical evidence
involved in the case. As an initial matter, we are not persuaded that any of the
defense experts ever actually adopted as their own the statements attributed to
them. The document is not a verbatim transcript of the strategy session, but
Rowley’s summary of points that Yukevich directed him to note. Yukevich then
edited the document, adding his own thoughts and comments. As the trial court
observed, the document was an interpretation and summary of what others thought
the experts were saying.10

10
While Johnson was testifying on direct examination at the hearing on the
motion to disqualify, the court interjected: “The difficulty with that concept [that
Germane’s direct statement is contained in the document at issue] is that you’re
assuming it’s a direct quote.” Soon after the court further stated, “No, listen to me
very carefully. You’re assuming all along that this is a direct quotation from the
so-called experts, the four that you recognize. Whereas, in truth, it may be that it
is an interpretation of what someone said through somebody else’s mind.”
14

---

Moreover, we agree with the Court of Appeal that, “when a writing is
protected under the absolute attorney work product privilege, courts do not invade
upon the attorney’s thought processes by evaluating the content of the writing.
Once [it is apparent] that the writing contains an attorney’s impressions,
conclusions, opinions, legal research or theories, the reading stops and the contents
of the document for all practical purposes are off limits. In the same way, once the
court determines that the writing is absolutely privileged, the inquiry ends. Courts
do not make exceptions based on the content of the writing.” Thus, “regardless of
its potential impeachment value, Yukevich’s personal notes should never have
been subject to opposing counsel’s scrutiny and use.”
We also reject plaintiffs’ argument that the crime or fraud exception should
apply to privileged work product in this civil proceeding. Under the work product
doctrine “[a] writing that reflects an attorney’s impressions, conclusions, opinions,
or legal research or theories is not discoverable under any circumstances.
(§ 2018.030 , subd. (a) italics added.) With respect to such a writing, the
Legislature intended that the crime or fraud exception only apply “in any official
investigation by a law enforcement agency or proceeding or action brought by a
public prosecutor . . . if the services of the lawyer were sought or obtained to
enable or aid anyone to commit . . . a crime or fraud.” (§ 2018.050.) By its own
terms, the crime or fraud exception does not apply here.
15

---

DISPOSITION

We affirm the Court of Appeal’s judgment.

CORRIGAN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
16

---

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Rico v. Mitsubishi Motor Corp.
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 51
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S123808
Date Filed: December 13, 2007
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Ben T. Kayashima

__________________________________________________________________________________

Attorneys for Appellant:

Pine & Pine, Norman Pine, Beverly Pine; Law Offices of Raymond Paul Johnson, Raymond Paul Johnson,
Robert A. Balbuena, Michelle M. West; Law Offices of Jack L Mattingly and Jack L. Mattingly for
Plaintiffs and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Yukevich & Sonnett, James J. Yukevich, Alexander G. Calfo, Stephanie A. Hingle; Bingham McCutchen,
Leslie G. Landau, Claudia Y. Sanchez; Snell & Wilmer, Michael D. Zimmerman, Richard A. Derevan and
Michael S. McIntosh for Defendants and Respondents.

Hugh F. Young, Jr., and Harvey M. Grossman for The Product Liability Advisory Council, Inc., as Amicus
Curiae on behalf of Defendants and Respondents.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Norman Pine
Pine & Pine
14156 Magnolia Boulevard, Suite 200
Sherman Oaks, CA 91423
(818) 379-9710

James J. Yukevich
Yukevich & Sonnett
601 S. Figueroa Street, Suite 3801
Los Angeles, CA 90017
(213) 362-7777

---

Petition for review after the Court of Appeal affirmed an order in a civil action. This case includes the following issue: Did the trial court properly disqualify plaintiffs' attorneys and plaintiffs' expert witnesses as a sanction when an attorney representing one of the plaintiffs, after inadvertently receiving a document prepared by defense counsel that included confidential work product, extensively reviewed the document with the attorneys representing other plaintiffs and with plaintiffs' expert witnesses?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Thu, 12/13/2007	42 Cal. 4th 807, 171 P.3d 1092, 68 Cal. Rptr. 3d 758	S123808	Review - Civil Appeal	closed; remittitur issued	RICO v. S.C. (MITSUBISHI) (S115976) JASMINE NETWORKS v. MARVELL SEMICONDUCTOR (S124914)

Opinion Authors
Opinion	Justice Carol A. Corrigan

Disposition
Dec 13 2007	Opinion: Affirmed

Dockets
Apr 2 2004	Petition for review filed   counsel for appellants' Zerlene Rico, et al.
Apr 5 2004	Record requested
Apr 22 2004	Answer to petition for review filed   by resps
Apr 22 2004	Record requested
Apr 27 2004	Received Court of Appeal record   one box
Apr 30 2004	Reply to answer to petition filed   appellant Zerlene Rico
May 13 2004	Time extended to grant or deny review   to 7-1-04
Jun 9 2004	Petition for review granted (civil case)   Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 23 2004	Certification of interested entities or persons filed   by pltf-aplt
Jun 30 2004	Certification of interested entities or persons filed   by deft-resp
Jul 6 2004	Request for extension of time filed   counsel for appellants Zerlene Rico, et al. to file opening brief on the merits
Jul 6 2004	Filed:   application from counsel for applnts' Zerlene Rico, et al. re guidance in complying with sealing order of trial court
Jul 28 2004	Order filed   Upon consideration of appellants' "Application Requesting The Court's Guidance In Complying With Sealing Order Of The Trial Court; Request For Further Guidance Regarding Appellants' And Respondents' Record On Appeal" filed on July 6, 2004, we order the following: The parties are directed to file a motion or application to seal providing reasons why specific portions of their briefs should be placed under seal. (See Cal. Rules of Court, rule 243.2(b).) Concurrently, with the filing of their motion to seal, the parties should lodge their briefs with this court for the court's consideration. (Cal. Rules of Court, rules 243.2(b)(4), (d).) Furthermore, appellants' request to file a supplemental appendix is denied. Because the trial court previously ordered the portions of the record at issue sealed, they remain sealed for this court's purposes. (See Cal. Rules of Court, rule 12.5(c).) Accordingly, the clerk is directed to place the pages set forth in appellants' application in a confidential section of the case file because these documents are under seal for the purposes of this case. Appellants' request for an extension of time is granted. Appellants' opening brief is due seventeen (17) days from the date of this order.
Aug 17 2004	Motion filed (non-AA)   UNDER SEAL by Appellant to seal portions of the opening brief on the merits.
Aug 17 2004	Opening brief on the merits filed   Appellant's PUBLIC REDACTED VERSION.
Aug 17 2004	Opening brief on the merits filed   by appellants UNDER SEAL (Public redacted version also provided) (40k)
Aug 17 2004	Application to file document under seal (non-AA)   Application to file opening brief on the merits under seal, filed by appellants. Conditionally sealed & public versions provided.
Sep 7 2004	Notice of substitution of counsel   Richard A. Derevan for respondents Mitsubishi Motors Corporation, in place of John R. Reese.
Sep 8 2004	Request for extension of time filed   by respondent to file the answer brief on the merits. Asking to Nov. 1, 2004.
Sep 15 2004	Extension of time granted   to Nov. 1, 2004, for respondents to file the answer brief on the merits.
Nov 1 2004	Request for extension of time filed   for resps to file the answer brief on the merits, to 11-15-04.
Nov 3 2004	Extension of time granted   to 11-15-04 for resps to file the answer brief on the merits.
Nov 16 2004	Received:   from counsel for resps. (Mitsubishi Motors Corps. and Mitsubishi Motor Sales of Amer. Inc.) Application to File Respondent's Answer Brief on the merits under seal. w/briefs
Mar 30 2005	Received application to file Amicus Curiae Brief   from counsel for THE PRODUCT LIABILITY ADVISORY COUNCIL, INC. in support of resps MITSUBISHI MOTORS CORPORATION, et al. (brief under same cover)
Apr 18 2005	Permission to file amicus curiae brief granted   by the Product Liability Advisory Council, Inc. in support of respondent. Answers may be filed w/in 20 days.
Apr 18 2005	Amicus curiae brief filed   by the Product Liability Advisory Council, Inc. in support of resps.
May 10 2005	Response to amicus curiae brief filed   by counsel for aplt. (40.1(b))
May 11 2005	Filed:   Respondent's APPLICATION to file Answer Brief on the Merits under seal.
May 11 2005	Answer brief on the merits filed   Respondent ( Mitsubishi) ( PUBLIC REDACTED VERSION)
May 11 2005	Answer brief on the merits filed   UNDER SEAL. Respondent ( Mitsubishi)
May 11 2005	Application to file document under seal granted   Appellants' Motion to Seal Portions of Appellants' Briefs on Appeal, filed August 17, 2004, is granted. Appellants are hereby permitted to file under seal those portions of their opening brief on the merits that have been masked in the version of that brief marked "Public Redacted Version" and filed on August 17, 2004. In accordance with this order, the version of appellants' opening brief marked "Filed Conditionally Under Seal," which the clerk of this court erroneously filed on August 17, 2004, is hereby deemed received on August 17, 2004 and filed under seal as of the date of this order. In addition, permission is hereby granted to file under seal the version of Appellants' Motion to Seal Portions of Appellants' Briefs on Appeal marked "Filed Conditionally Under Seal" and filed on August 17, 2004. Respondents' Application to File Respondents' Answering Brief on the Merits Under Seal, lodged with the court on November 16, 2004, is granted. Respondents are hereby permitted to file under seal the portions of their answer brief on the merits that have been masked in the version of that brief marked "Public Redacted Version" and lodged with this court on November 16, 2004. The clerk is instructed to file as of the date of this order respondents' Application to File Respondents' Answering Brief on the Merits Under Seal and the version of respondents' answer brief on the merits marked "Public Redacted Version." The clerk is instructed to file under seal as of the date of this order the version of respondents' answer brief marked "Filed Conditionally Under Seal." If appellants choose to file a reply brief, they are hereby permitted to file under seal portions of that brief that discuss possible false statements under oath by expert witnesses, but only to the extent filing those portions under seal is necessary to prevent disclosure of the contents of sealed portions of the record. At oral argument in this case, persons appearing on behalf of the parties shall not make any statements that would disclose the contents of matters filed under seal.
May 19 2005	Filed:   1. Appellants' application for permission to file oversize reply brief on the merits. 2. Appellants' motion to seal portions of the reply brief. 3. Received Appellants' reply brief on the merits. (public redacted versions provided)
May 23 2005	Order filed   On application of appellants it is ordered that the request to file the motion and oversize reply brief on the merits under seal is hereby granted.
May 23 2005	Reply brief filed (case fully briefed)   by appellants SEALED A public redacted version is also being filed.
Jul 20 2005	Change of contact information filed for:   counsel for respondents
Feb 10 2006	Change of contact information filed for:   name change of law firm, appellants counsel
Apr 17 2006	Received:   letter dated April 13, 2006 re: unavailability of counsel from June 1 through June 15, 2006. Mitsubishi Motors, Respondent by Richard A. Derevan, counsel
Sep 15 2006	Received:   letter dated September 13, 2006 re: unavailability of counsel from January 28, 2007 through February 11, 2007. Zerline Rico, appellant by Norman Pine, counsel
Sep 5 2007	Case ordered on calendar   to be argued on October 3, 2007, in Santa Rosa, at 9:00 a.m. special session at the Sonoma Country Day School, 4400 Day School Place, Santa Rosa
Sep 13 2007	Note: Mail returned (unable to forward)   Richard A. Derevan
Sep 13 2007	Argument rescheduled   to be argued on the previous day: on October 2, 2007, at 9:00 a.m., in Santa Rosa.
Sep 18 2007	Request for Extended Media coverage Filed   By The California Channel.
Sep 19 2007	Note: Mail returned (unable to forward)   to Richard A. Derevan
Sep 20 2007	Request for Extended Media coverage Filed   The request for extended media coverage, filed September 18, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Sep 28 2007	Note: Mail returned (unable to forward)   counsel Richard A. Derevan
Sep 28 2007	Request for Extended Media coverage Granted   The request for extended media coverage, filed by The Santa Rosa Press Democrat on September 25, 2007, is granted, subject to the conditions set forth in rule 1.150, California Rules of Court.
Sep 28 2007	Request for Extended Media coverage Filed   by The Santa Rosa Press Democrat
Oct 2 2007	Cause argued and submitted
Oct 24 2007	Change of contact information filed for:   Johnson Balbuena Law Office, change to Raymond Paul Johnson, A Law Corporation by Michelle M. West, counsel
Dec 12 2007	Notice of forthcoming opinion posted
Dec 13 2007	Opinion filed: Judgment affirmed in full   Opinion by: Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Jan 14 2008	Remittitur issued (civil case)
Jan 25 2008	Received:   Receipt for Remittitur from Court of Appeal - Fourth Appellate District, Division Two

Briefs
Aug 17 2004	Opening brief on the merits filed
Aug 17 2004	Opening brief on the merits filed
Apr 18 2005	Amicus curiae brief filed
May 10 2005	Response to amicus curiae brief filed
May 11 2005	Answer brief on the merits filed
May 11 2005	Answer brief on the merits filed
May 23 2005	Reply brief filed (case fully briefed)

Brief Downloads
s123808a.pdf (142930 bytes) - Rico's opening brief
s123808b.pdf (2436845 bytes) - Mitsubishi Motors' brief
s123808c.pdf (61475 bytes) - Rico's reply brief
s123808e.pdf (1719472 bytes) - Amicus curiae brief on behalf of Mitsubishi Motors
s123808F.pdf (58945 bytes) - Rico's answer to amicus curiae brief

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jul 3, 2011 Annotated by Wyatt Delfino

-Facts Mitsubishi Motors Corporation, Mitsubishi Motor Sales of America, and California Department of Transportation (Caltrans), were sued by various plaintiffs after a Mitsubishi Montero rolled over while being driven on a freeway. In preparing their defense, Mitsubishi representatives, and Mitsubishi's case manager met with their lawyers, James Yukevich and Alexander Calfo, as well as two defense experts. During this meeting, notes were taken that contained details of Mitsubishi's legal strategy. The notes were annotated by Yukevich,and were never intentionally shown to anyone. During a deposition at the offices of plaintiff's counsel, Yukevich left the notes on the table when he went to the bathroom. Plaintiff's counsel and the court reporter were left alone with Yukevich's notes. Somehow, Plaintiff's counsel Raymond Johnson obtained Yukevich's notes. Defense counsel alleged that Johnson took the notes from Yukevich's file, which had been left on the the conference table. Johnson alleged that he was given the file by the court reporter, though the court reporter had no specific knowledge of giving Johnson the file. While Yukevich's notes were not labeled as confidential, Johnson admitted that he knew within minutes that the notes related to Mitsubishi's defense. Never the less, Johnson used the notes while deposing defense experts. Johnson also made copies of Yukevich's notes, gave copies to his co-counsel, and discussed them with Plaintiff's experts. When Defense counsel realized that Johnson had possession of Yukevich's notes, they demanded that they be returned, and subsequently moved to have Plaintiff's counsel disqualified. -Procedural history Defendant's moved to have Plaintiff's counsel disqualified. The trial court concluded that Yukevich's notes were absolutely privileged under the work product rule, and that Johnson had acted unethically by examining the documents more closely than was necessary to determine that its contents were confidential, by failing to notify Yukevich that he had a copy of the notes, and by surreptitiously using them to gain maximum adversarial value from them. The trial court determined that these violations of the work product rule ad prejudiced the defense and that the bell could not be "unrung" through use of in limine orders. The court ordered the plaintiffs' attorneys and experts disqualified. Plaintiffs appealed the disqualification order. The Court of Appeal affirmed. -Issues Whether, under the circumstances of this case, Yukevich's notes were privileged, and if so, whether disqualification of counsel and experts was proper. -Holding Yukevich's notes are work product and as such, absolutely privileged. Given the extent to which plaintiff's counsel sought to exploit the accidental disclosure, disqualification of plaintiff's counsel and experts was appropriate. -Analysis Under California Code of Civil Procedure section 2018.030 (a), any "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances." This protection extends to an attorney's written notes about a witness's statements, such that when a witness's statement and the attorney's impressions are inextricably intertwined, the work product doctrine provides that absolute protection is afforded to all the attorney's notes. In this case, Yukevich's notes were clearly work product. The document reflects the lawyer's strategy, as well as his opinion as to the importance of the issues. Even though the notes were written in dialogue format, and contain information attributed to Mitsubishi's experts, the document is not an expert report, writing, declaration, or testimony. Rather, it reflects the paralegal's summary of counsel's thoughts on the information provided by the experts. Under State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644, when an attorney recieves a document that appears to be subject to an attorney-client privilege, the lawyer may not examine the document any more than is necessary to determine that it is the subject of attorney client privilege. In this case, Johnson admits that he was aware within a few minutes that the notes would be subject to privilege and were inadvertently produced. Under these circumstances, it is clear that Johnson violated the State Fund rule. Given these violations, the trial court did not abuse its discretion in disqualifying the plaintiff's counsel or experts. Johnson's use and dissemination of Yukevich's notes caused unmitigatable damage to the defendant. Johnson's justification - that he used the notes because they allegedly revealed contradictions between Mitsubishi's experts' statements as stated in the notes and their deposition testimony - was insufficient. First, there was no evidence that defense experts actually made the statements attributed to them in the notes. Second, because the notes are absolutely privileged, the court will not examine them further to evaluate the content of the document. -Tags misconduct, mitsubishi, caltrans, privilege, attorney client privilege, work product, State Fund rule, discovery, attorney disqualification, expert disqualification.