Tucker Ellis LLP v. Superior Court of City & Cnty. of S.F.

others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision.

on the basis of attorney-client and the attorney work product privileges. Ultimately, Tucker Ellis produced the attorney work product emails authored by Nelson, which are the subject of this litigation. After Nelson was subpoenaed for deposition, he wrote a "clawback" letter to Tucker Ellis and Durham counsel, asserting the emails contained his privileged attorney work product and demanding they be sequestered and returned to him. Tucker Ellis did not respond to Nelson's letter.

Nelson filed this lawsuit against Tucker Ellis, alleging claims for negligence, negligent and intentional interference with contract, negligent and intentional interference with prospective economic advantage, intentional invasion of privacy, and conversion. Nelson asserted that as a result of Tucker Ellis's production of his emails, his attorney work product was made available on the internet and disseminated to over 50 asbestos plaintiffs' attorneys, interfering with his ability to work effectively with experts in the asbestos field, and ultimately resulting in his termination from his new law firm and an inability to find new employment in his practice field.

Tucker Ellis moved to compel arbitration of Nelson's claims pursuant to an arbitration clause in Nelson's employment agreement. Respondent court denied the motion, concluding the arbitration clause was procedurally and substantively unconscionable under California law. Tucker Ellis appealed, and we affirmed. ( Nelson v. Tucker Ellis , LLP (December 15, 2014 A141121), 2014 WL 7107762 , 2014 Cal. App. Unpub. LEXIS 8971 ( Nelson I ).) In the course of discussing whether the arbitration clause was substantively unconscionable, we stated the following:

"Despite Tucker Ellis's arguments to the contrary, we conclude the nature of the right Nelson seeks to vindicate by his lawsuit is 'legally indistinguishable from the nature of the rights discussed in [ Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 , 99 Cal.Rptr.2d 745 , 6 P.3d 669 and Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064 , 130 Cal.Rptr.2d 892 , 63 P.3d 979 ].' [Citation.] The cause of action for an alleged intentional invasion of privacy through public disclosure of private information is tethered to both the constitutional right of privacy [citations] as recognized by the trial court, and the public policy articulated in Code of Civil Procedure sections 2018.020 and 2018.030 that writings, which reflect an attorney's impressions, conclusions, opinions, or legal research or theories, are not discoverable under any circumstances [citation]. Because Tucker Ellis could not ask Nelson to waive his attorney work product privilege as a condition of his employment, the law firm also 'cannot impose on the arbitration of [his]

stated below, we now conclude Tucker Ellis is entitled to writ relief.

DISCUSSION

Appropriateness of Writ Relief

An order granting partial summary judgment-or summary adjudication-is not an appealable order. However, under certain circumstances, mandate may be granted to review an order granting summary adjudication. (See Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110 , 111, 77 Cal.Rptr. 243 , 453 P.2d 747 ; Mason v. Superior Court (1985) 163 Cal.App.3d 989 , 994, 210 Cal.Rptr. 63 .) In particular, a writ of mandate may issue to prevent trial of non-actionable claims after an erroneous decision on a motion for summary adjudication. (See Arnall v. Superior Court (2010) 190 Cal.App.4th 360 , 364, 118 Cal.Rptr.3d 379 ; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440 , 1450, 75 Cal.Rptr.2d 54 .) Since a motion for summary adjudication "involves pure matters of law," we review the trial court's ruling de novo. (See Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205 , 214, 51 Cal.Rptr.2d 642 ; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505 , 1514, 285 Cal.Rptr. 385 .)

However, the dispositive issue here is who is the holder of the section 2018.030 attorney work product privilege, which attaches to and seeks to protect the information reflected in the documents in question. As we noted in considering Tucker Ellis's anti-SLAPP motion ( Nelson II , supra , at p. *3, 2015 Cal. App. Unpub. LEXIS 8561 at pp. *8-9 ), an attorney can assert his work product privilege even though he is no longer in possession the document (see OXY Resources California, LLC v. Superior Court (2004) 115 Cal.App.4th 874 , 901, 9 Cal.Rptr.3d 621 ), and the contents of the documents may have

As explained by our Supreme Court, "[t]he idea that an attorney's work product should receive protection from discovery was first recognized by the United States Supreme Court in Hickman v. Taylor (1947) 329 U.S. 495 [ 67 S.Ct. 385 , 91 L.Ed. 451 ] ( Hickman ). There, the defendant's counsel interviewed and took statements from the surviving crewmembers of a tugboat accident. ( Id . at p. 498 [ 67 S.Ct. 385 ].) The plaintiff sought the production of any written or oral statements taken from the crewmembers. ( Id . at pp. 498-499 [ 67 S.Ct. 385 ].) After concluding that the statements were not covered by the attorney-client privilege ( id . at p. 508 [ 67 S.Ct. 385 ] ), the court nonetheless affirmed the denial of the plaintiff's request. The court explained that the plaintiff's request was 'simply an attempt, without purported necessity or justification, to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party's counsel in the course of his legal duties.' ( Id . at p. 510 [ 67 S.Ct. 385 ]. [¶ ] The court continued: 'In performing his various duties, ... it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients' interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways-aptly though roughly termed by the Circuit Court of Appeals in this case as the "work product of the lawyer." Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal

such as DDA Longanbach, made in the course of his employment with the DA, would belong to the DA and not the individual DDA." ( Id . at pp. 399, 400, 99 Cal.Rptr.2d 646 ; italics added.)

Nelson challenges our reliance on Lockyer , arguing that the Lockyer court relied on the concept that a district attorney is not an "attorney" who represents clients as such, and, the decision is otherwise distinguishable because attorney work product in the criminal context is governed by Penal Code section 1054.6, not section 2018.030. We are not persuaded. The Lockyer court's analysis of who could assert the privilege as between a former deputy district attorney and the district attorney did not turn on its observation that the district attorney does not have "clients" in the traditional sense. To the contrary, the court considered that the relationship between the deputy district attorney and the district attorney was similar to that of corporate employee and corporate employer. ( Id . at pp. 398-399, 99 Cal.Rptr.2d 646 .) Nor did the Lockyer court's conclusion depend on any distinction between civil and criminal discovery. The Lockyer court merely observed that "confidentiality regarding the fruits of investigations of a public prosecutor are governed exclusively by Evidence Code section 1040, which controls the assertion of claims for governmental privilege for official

zealously represent the interests of its clients with undivided loyalty. As our high court has aptly explained: "Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process. [Citations.] The effective functioning of the fiduciary relationship between attorney and client depends on the client's trust and confidence in counsel. [Citation.] The courts will protect clients' legitimate expectations of loyalty to preserve this essential basis for trust and security in the attorney-client relationship." ( People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc . (1999) 20 Cal.4th 1135 , 1146-1147, 86 Cal.Rptr.2d 816 , 980 P.2d 371 .)

FACTUAL AND PROCEDURAL BACKGROUND

Nelson is a California attorney specializing in asbestos defense, and was employed by Tucker Ellis as a trial attorney in the firm's Mass Tort & Product Liability Practice Group in San Francisco beginning in November of 2007. In late 2009, Nelson was promoted to the position of "non-capital partner," a position he held until November of 2011, when he left Tucker Ellis to join a competing law firm in the same practice area.

When Nelson joined Tucker Ellis, he signed an employment agreement, stating that he "agree[d] to conform to the rules, regulations and policies of the Firm." During Nelson's employment, Tucker Ellis also provided employees with a Non-Partner Attorney Personnel Handbook, which stated, "[a]ll records and files maintained by Tucker Ellis & West LLP" were "the property of Tucker Ellis & West LLP," and "[a]ll documents, including email and voice mail, received, created or modified by any attorney are the property of Tucker Ellis & West LLP." The 2007 Tucker Ellis & West LLP Practice Policy Manual similarly provided that, "Firm provided Technology Systems are Firm property."

As part of his employment, Nelson worked with a group of scientific consulting experts at the Gradient Corporation (Gradient). Gradient was retained by Tucker Ellis to assist in litigation for a Tucker Ellis client. In 2008, Nelson exchanged a series of emails with Gradient consultants about medical research articles relating to smoking and/or radiation (rather than asbestos) as causes of mesothelioma (hereinafter also referred to as "attorney work product emails"). Around the same time, Tucker Ellis entered into an agreement with Gradient to research existing scientific studies on the causes of mesothelioma, and summarize them in a published review article that was ultimately titled " Ionizing radiation: a risk factor for mesothelioma ."

In September of 2011, while Nelson was still employed at Tucker Ellis, the law firm was contacted by counsel of record in Durham v. General Electric Co., et al. (Durham) , a litigation matter pending in Kentucky. Durham counsel advised that Tucker Ellis would be served with a subpoena seeking documents related to payments made by Tucker Ellis to Gradient to fund medical research articles and communications between Tucker Ellis and Gradient regarding such articles. Tucker Ellis's managing partner discussed the anticipated subpoena with Nelson, albeit the parties disagree about the contents of those conversations.

After Nelson left Tucker Ellis, the law firm was served with the anticipated subpoena issued in Ohio pursuant to an out-of-state commission in the Durham case. The subpoena sought, in pertinent part, the production of

"[a]ny and all emails, letters or other communications between Tucker, Ellis & West LLP and Goodman, Gradient or Exponent regarding the research or publication" of "any literature or studies related to mesothelioma, asbestos or radiation-induced mesothelioma" funded by Tucker Ellis, including the noted published review article. Tucker Ellis reviewed the subpoena and withheld certain documents

claim[ ] such burdens or procedural shortcomings as to preclude [its] vindication.' [Citation.]" ( Nelson I, supra , at p. *4, 2014 Cal. App. Unpub. LEXIS 8971 at pp. *16-17.)

Tucker Ellis then filed a special motion to strike the complaint as a strategic lawsuit against public participation pursuant to section 425.16 (the anti-SLAPP statute), and respondent court denied the motion. Tucker Ellis again appealed, and we affirmed. ( Nelson v. Tucker Ellis , LLP (November 24, 2015 A142731), 2015 WL 7568165 , 2015 Cal. App. Unpub. LEXIS 8561 ( Nelson II ).) In the course of discussing whether Tucker Ellis had demonstrated that the challenged causes of action arose from protected activity, we stated the following:

"By his lawsuit, Nelson seeks relief based on an overarching claim that Tucker Ellis breached an independent legal duty it owed to Nelson regarding the nondisclosure of his privileged attorney work pro

the work product created by Nelson, Tucker Ellis claimed it held the exclusive right to assert and waive the privilege afforded under section 2018.030, without Nelson's consent. Finding Labor Code section 2860 inapplicable, respondent court ruled, "Tucker Ellis LLP owed Plaintiff Evan C. Nelson a legal duty to take appropriate steps to ensure that work product created by Plaintiff which contains his impressions, conclusions and opinions and in [Tucker Ellis's] possession was not disclosed to others without Plaintiff's permission."

Tucker Ellis filed its petition for a writ of mandate in this court, challenging respondent court's summary adjudication ruling on the issue of duty. We requested informal briefing, and gave notice, pursuant to section 1088 and Palma v. U.S. Industrial Fasteners, Inc . (1984) 36 Cal.3d 171 , 180, 203 Cal.Rptr. 626 , 681 P.2d 893 , that, we might choose to act by issuing a peremptory writ in the first instance. After receipt of informal briefing, we temporarily stayed the trial in respondent court and issued an order to show cause, scheduling dates for the filing of a formal return and a formal traverse. Tucker Ellis filed a formal return and Nelson filed a formal traverse. We have reviewed the parties written pleadings, the record, and had the benefit of oral argument. For the reasons

Labor Code Section 2860 Does Not Determine Who is the Holder of Attorney Work Product Privilege Under Section 2018.030

Tucker Ellis asserts this dispute "boils down" to the issue of the ownership of Nelson's work product created while he was an employee of the law firm. According to Tucker Ellis, a finding that Nelson did not own the work product he created while employed by Tucker Ellis precludes any determination that the law firm owed him a duty of care. Therefore, the law firm was entitled to disclose Nelson's work product without his permission. In support of its claim it is the sole owner of the work product created by Nelson, Tucker Ellis relies on Labor Code section 2860, which provides: "Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment." (See Lugosi v. Universal Pictures (1979) 25 Cal.3d 813 , 826-27, 160 Cal.Rptr. 323 , 603 P.2d 425 ["where an employee creates something as part of his duties under his employment, the thing created is the property of his employer"]; Zahler v. Columbia Pictures Corp. (1960) 180 Cal.App.2d 582 , 589, 4 Cal.Rptr. 612 [accord].) Tucker Ellis also argues that its claim of sole ownership is supported by several employment documents applicable to Nelson's employment. For example, the Tucker Ellis Non-Partner Attorney Personnel Handbook provides that "[a]ll records and files maintained by Tucker Ellis & West LLP" were "the property of Tucker Ellis & West LLP," that Nelson had no "reasonable expectation of privacy with respect to his" firm emails, and that "[a]ll documents, including email and voice mail, received, created or modified by any attorney are the property of Tucker Ellis & West LLP." The 2007 Tucker Ellis & West LLP Practice Policy Manual similarly provided that "Firm provided Technology Systems Are Firm property."

Our review of Labor Code 2860 and the cases construing the scope of that statute, as well as the employment agreement and other policies in effect during Nelson's employment, leads us to conclude that Tucker Ellis owned the documents in question.

been communicated to the client (see BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240 , 1260, 245 Cal.Rptr. 682 ( BP Alaska Exploration )). This is consistent with the policy to be served by the privilege: "The recognition of an attorney's right to assert a work product protection [even if the document is no longer in the attorney's possession] strengthens the attorney-client relationship by enabling the attorney to evaluate his client's case and to communicate his opinions to the client without fear that his opinions and his theories will thereafter be exposed to the opposing party or to the public in general for criticism and ridicule." ( Ibid . ) We therefore decline Tucker Ellis's invitation to find that ownership of the documents in question, standing alone, answers the question before us: whether the law firm or Nelson is the holder of the section 2018.030 attorney work product privilege under the circumstances we confront here. Nonetheless, as we now explain, we conclude Tucker Ellis is the holder of the section 2018.030 attorney work product privilege that attached to the documents created by Nelson during and in the scope of his employment. Because Tucker Ellis is the holder of the privilege, it necessarily follows that the law firm had no legal duty to secure Nelson's permission before disclosing the documents to others.

Law Firm Employer is Holder of Section 2018.030 Attorney Work Product Privilege

It is well settled that "[t]he meaning and construction of a statute is a question of law, which we decide independently. [Citation.] We are required to harmonize the various parts of the statutory enactment by considering the particular section in the context of the statutory framework as a whole. [Citation.] Ordinarily, the words of the statute provide the most reliable indication of legislative intent. [Citation.] However, a statute's literal terms will not be given effect if to do so would yield an unreasonable or mischievous result. [Citation.]" ( B.H. v. County of San Bernardino (2015) 62 Cal.4th 168 , 189, 195 Cal.Rptr.3d 220 , 361 P.3d 319 .)

"California's civil work product privilege is codified in section 2018.030. Subdivision (a) provides absolute protection to any 'writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories.' ( § 2018.030, subd. (a).) Such a writing 'is not discoverable under any circumstances.' ( Ibid .) The term 'writing' includes any form of recorded information, including [transmitting by electronic mail or facsimile, and any record thereby created, regardless of the manner in which the record has been stored]. (§ 2016.020, subd. (c) [adopting the definition set forth in

profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served. ['] " ( Coito, supra , 54 Cal.4th at pp. 489-490, 142 Cal.Rptr.3d 607 , 278 P.3d 860 .)

In response to Hickman , and, later California cases interpreting Hickman , our Legislature codified an attorney work product privilege in section 2018.010 et seq. "[T]he current text is virtually identical to the version first enacted in 1963. Section 2018.020 declares: 'It is the policy of the state to do both of the following: [¶] (a) Preserve 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. [¶](b)

could not invoke attorney work product privilege to suppress answers given by plaintiff's former attorney in deposition because attorney is holder of the privilege].) Nelson also draws support for his contention that he is the holder of the privilege from case law espousing that the Legislature's intent in enacting section 2018.030 was to protect the attorney who created the work product. (See American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579 , 594, 113 Cal.Rptr. 561 ["the work product rule is designed to satisfy the attorney's requirement for privacy"]; Kerns Constr. Co. v. Superior Court (1968) 266 Cal.App.2d 405 , 411, 72 Cal.Rptr. 74 ["[i]f, as claimed, the reports were privileged under the work product rule, the privilege rested with the attorney"].) We have no quarrel with the case law cited by Nelson, but find that Lasky and cases similar to it, while helpful, are inapposite to the situation we confront here-whether the "attorney" who holds the privilege is the attorney employee who created the work product or his law firm employer. To resolve this ambiguity, we consider the statute's purpose, and the public policy to be served by the privilege. (See

the court was asked to consider the question of the holder of the attorney work product privilege as between Longanbach, a former deputy district attorney (DDA) and the district attorney (DA). ( Id. at p. 398, 99 Cal.Rptr.2d 646 .) Longanbach was under criminal investigation for perjury and misappropriation of government property arising out of his former employment with the DA. ( Id . at p. 393, 99 Cal.Rptr.2d 646 .) The California Department of Justice (DOJ) obtained a search warrant for the office formerly occupied by Longanbach and seized certain writings authored by him. ( Id . at pp. 393-394, 99 Cal.Rptr.2d 646 .) The trial court upheld Longanbach's claim of attorney-client privilege and attorney work product privilege over the documents and the DOJ sought writ relief. ( Id . at p. 395, 99 Cal.Rptr.2d 646 .) While acknowledging that "a public entity, similar to a corporation, has a right to assert the attorney-client privilege," the Lockyer court found "the right of an individual public prosecutor to do so is limited due to the nature of his or her position." ( Id . at p. 398, 99 Cal.Rptr.2d 646 .) The court analogized the deputy district attorney to an individual officer or employee of a corporation, and noted that " '[w]here the employee's connection with the matter grows out of his employment to the extent that his report or statement is required in the ordinary course of the corporation's business, the [deputy district attorney] is no longer an independent witness, and his [or her] statement or report is that of the [DA] employer.' " ( Lockyer , supra , 83 Cal.App.4th at pp. 398-399, 99 Cal.Rptr.2d 646 , quoting D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723 , 737, 36 Cal.Rptr. 468 , 388 P.2d 700 .) The Lockyer court concluded that "depending upon the circumstances, any possible claims of attorney-client privilege, work product protection or privacy regarding documents or statements prepared by a prosecuting attorney,

information," and requires a balancing of the necessity of preserving confidentiality against the interests in disclosure. ( Lockyer , supra , 83 Cal.App.4th at p. 399, 99 Cal.Rptr.2d 646 ; see Shepherd v. Superior Court (1976) 17 Cal.3d 107 , 122-123, 130 Cal.Rptr. 257 , 550 P.2d 161 , overruled in part on another ground in People v. Holloway (2004) 33 Cal.4th 96 , 131, 14 Cal.Rptr.3d 212 , 91 P.3d 164 ). However, Penal Code section 1054.6, which governs attorney work product in the criminal context, explicitly defines attorney work product by reference to section 2018.030. Specifically, the Penal Code reads: "Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (a) of Section 2018.030 of the Code of Civil Procedure." ( Pen. Code, § 1054.6 ; see Lockyer , supra , at pp. 397-398 & fn. 8, 99 Cal.Rptr.2d 646 .)

Our conclusion that Tucker Ellis is the holder of the attorney work product privilege under the circumstances of this case is further buttressed when we consider the anomalous results that would potentially flow were we to adopt Nelson's position. Concededly, this case involves law firm documents created by a single employee attorney for a client of the employer law firm. But, as Tucker Ellis notes, many law firm documents will reflect the work product of multiple current and former attorneys, potentially practicing in multiple jurisdictions. Securing permission from these attorneys to disclose their work product, and resolving conflicts among them when they do not agree about whether certain information constitutes work product or who was involved in creating it, will be a burdensome and complicated task for a law firm required to comply with requests for disclosure while preserving the privilege. In addition, to the extent this task involves former attorneys who created work product for current firm clients, as here, the purpose of the attorney work product privilege will be better served by allowing the firm itself-with current knowledge of ongoing litigation and client issues and in the context of the firm's on-going attorney-client relationships-to speak with one voice regarding the assertion of the privilege. By declining to extend the scope of the attorney work product privilege to include Nelson in this case we also avoid undue intrusion into the equally sacrosanct duty of a law firm to