• Finding and Using Opposing Counsel's Notes of Expert Witness Interview Results in Disqualification
  • March 16, 2004
  • Law Firm: Hinshaw & Culbertson LLP - Chicago Office
  • A lawyer was disqualified from representing the plaintiff in a sports utility vehicle rollover case for obtaining and using a privileged document prepared by a paralegal employed by defense counsel. The 12-page document was a summary, in dialogue form, of a defense conference between attorneys and defense experts in which the participants discussed the strengths and weaknesses of the defendants' technical evidence. The document contained handwritten notes and defense counsel's impressions of the meeting with the experts.

    The facts about how plaintiff's counsel obtained the document were disputed. Plaintiff's counsel contended that a court reporter gave him the document, while defense counsel believed that plaintiff's counsel took the documents from defense counsel's files when he was out of the room in which they were meeting. However the document was obtained, Plaintiff's counsel made copies and later used information in the document to impeach the testimony of a defense expert during his deposition.

    When defense counsel learned that plaintiff's counsel had obtained and used the document, a motion to disqualify plaintiff's counsel was filed and granted.

    The appellate court affirmed the disqualification, holding that the document, containing the attorney's derivative or interpretive notes, constituted work product rather than a discoverable witness statement. As such, the document was absolutely privileged and was not discoverable under any circumstances.

    The court noted that, in California, two cases took apparently opposite positions on what a lawyer should do when he obtains a privileged document. In Aerojet-General Corp. v. Transport Indemnity Insurance, 18 Cal. App. 4th 996 (1993), the court held that an attorney who inadvertently discovers a privileged document has no duty to inform opposing counsel, but instead has a duty to use any unprivileged information contained in the document that would be advantageous to his client. The appellate court in Rico noted, however, that the Aerojet court conditioned its holding on the grounds that there was no State Bar rule of professional conduct or any other rule or statute specifically mandating or defining any duty under these circumstances.

    In State Comp. Ins. Fund. V. WPS, 70 Cal. App. 4th 644 (Cal.App., 1999), the appellate court held that when a lawyer receives through the inadvertence of opposing counsel documents plainly subject to the 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."

    The court in Rico followed State Comp. Ins. Fund and found that plaintiff's counsel should have stopped reading the document and immediately notify defense counsel that he had it. Because he did not follow this course, but instead used the document, the court concluded that the appropriate remedy was disqualification.

    Significance of the Case
    Even zealous representation has its limits. Lawyers who use documents that they reasonably know, or should know, they are not entitled to have, act at their own and their clients' peril. The client's case may be prejudiced as a result of the disqualification, as may be the lawyer's ability to collect a fee. It is not difficult to imagine that a client forced to find a new attorney because of his lawyer's overly aggressive tactics may have qualms about paying the lawyer's bills. At the end of the day, discretion is often the better part of valor.