Recently, the First District Court of Appeal (San Francisco) issued an opinion in a writ proceeding determining whether an employer law firm or a former attorney employee is the holder of the attorney work product privilege of documents created by the attorney employee during and in the scope of employment. In Tucker Ellis, LLP v. The Superior Court of City and County of San Francisco (June 21, 2017, A148956) __ Cal.App.5th __, the court held that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm and not the former attorney employee. (Slip opn., p. 1.)
Evan C. Nelson (“Nelson”) was employed by Tucker Ellis & West, LLP (“Tucker Ellis”) as an attorney pursuant to an employment agreement stating that “[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.” (Slip opn., p. 2.) After Nelson left Tucker Ellis to join a competing firm, Tucker Ellis was served with a subpoena to produce documents related to payments made by Tucker Ellis to Gradient, a group of scientific consulting experts. (Id. at pp. 2-3.) Tucker Ellis produced the attorney work product emails authored by Nelson pursuant to the subpoena. (Id. at p. 3.) Nelson sued Tucker Ellis as a result of the production of the emails. (Ibid.) Nelson later moved for adjudication, seeking determination that Tucker Ellis had a legal duty to protect Nelson’s attorney work product from improper disclosure to third parties pursuant to Code of Civil Procedure section 2018.030. (Id. at p. 5.) Tucker Ellis opposed arguing it owned the work product under Labor Code section 2860 and as the owner, held the exclusive right to assert and waive the privilege afforded under section 2018.030. (Id. at p. 6.) The court disagreed finding Labor Code section 2860 inapplicable and that Tucker Ellis owed Nelson a legal duty to take appropriate steps to ensure that work product created by Nelson was not disclosed to others without his permission. (Ibid.) Tucker Ellis petitioned the Court of Appeal for a writ of mandate. (Ibid.)
The Court of Appeal granted Tucker Ellis writ relief. (Slip opn., p. 6.) The Court of Appeal held, based on Labor Code section 2860, the employment agreement and other policies in effect during Nelson’s employment, Tucker Ellis owned the documents produced. (Id. at p. 8.) The court also held that under the circumstances of this case, Tucker Ellis was the holder of the section 2018.030 attorney work product privilege that attached to the documents created by Nelson during his employment (Ibid.) The court explained that it interprets the term “attorney” under section 2018.030 to mean Tucker Ellis, not Nelson, based on the statute’s purpose, legislative intent, public policy as well as the fact that Gradient entered into a retention agreement with Tucker Ellis, not Nelson. (Id. at pp. 12-13.) The court emphasized the narrowness of its holding, that under California law and the record before it, Tucker Ellis is the holder of the section 2018.030 attorney work product privilege that attached to documents created by Nelson during and in the scope of his employment. (Id. at pp. 15-16.) As such, the court issued a peremptory writ of mandate directing respondent court to vacate its summary adjudication order and enter a new order consistent with the opinion. (Id. at p. 16.)
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