Domestic Diversions

The California Supreme Court disqualified an attorney who used opposing counsel’s notes of a meeting with expert witnesses. In Rico v. Mitsubishi Motors Corporation, the court stated:
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.
****
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.”