Attorney Work Product Belongs To Law Firm, Not Former Attorney Employee

Tucker Ellis LLP v. Superior Court, 2017 WL 2665188 (Cal. Ct. App. 2017)

Evan C. Nelson, who is a California attorney specializing in asbestos defense, was employed as a trial attorney by Tucker Ellis in the firm’s Mass Tort & Product Liability Practice Group. The firm promoted Ellis to the position of “non-capital partner” approximately two years before he left Tucker Ellis to join a competing law firm. After Nelson left Tucker Ellis, the firm received a subpoena for, among other things, attorney work product emails authored by Nelson during his employment with Tucker Ellis. Tucker Ellis produced the Nelson emails in response to the subpoena, which spurred Nelson to send a “clawback” letter to Tucker Ellis and the subpoenaing party, asserting the emails contained privileged attorney work product and demanding they be sequestered and returned to Nelson. Tucker Ellis did not respond to Nelson’s letter. Nelson sued Tucker Ellis for negligent and intentional interference with contract, invasion of privacy, conversion, among other things, and asserted that the emails were made available on the Internet and disseminated to over 50 asbestos plaintiffs’ attorneys, which interfered with Nelson’s ability to work effectively with experts in the asbestos field and ultimately resulted in his being terminated from his new law firm and unable to find new employment.

In this writ proceeding (which followed a series of adverse rulings against Tucker Ellis), the Court of Appeal held that the law firm and not Nelson is the holder of the attorney work product privilege codified at Cal. Code Civ. Proc. § 2018.030 and that, therefore, Tucker Ellis had no legal duty to secure Nelson’s permission before disclosing the emails to others:  “…[T]he 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 ongoing attorney-client relationships – to speak with one voice regarding the assertion of the privilege.”