California has codified the attorney work product doctrine in Section 2018.030 of the California Code of Civil Procedure. That statute establishes two categories of protected work product. Under subdivision (a), a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances”. Under subdivision (b), other work product of an attorney is “not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice”. The statute is silent on who controls work product and thus may be in a position to object or waive discovery with respect to work product.
Because it is the attorney’s work product that is protected, it would be reasonable to assume that it is the attorney who holds the “privilege”. But this begs the question of who the attorney is when a law firm is involved. Is it the law firm or the individual attorney who created work product? In an opinion issued yesterday, the California Court of Appeal held that the law firm holds the “privilege”. Tucker Ellis LLP v. Superior Court of San Francisco, 2017 Cal. App. LEXIS 571 (Cal. Ct. App. 2017). In that case, an attorney sued his former employer, a law firm, alleging that the firm had released, without his consent, emails that he had written while working on a client matter at the firm. The attorney claimed that his erstwhile employer’s production of those emails in response to a subpoena interfered with this his ability to work effectively with experts, resulted in his termination at his new law firm, and prevented him from obtaining employment elsewhere.
The law firm countered that it was the sole owner of the plaintiff’s work product pursuant to Labor Code Section 2860. That statute 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”. The Court of Appeal, however, rejected the notion that Section 2860 determines who holds the attorney work product “privilege”. Nonetheless, the Court of Appeal found that construing “attorney” in Section 2018.030 to mean the law firm, not the individual attorney, was consistent with the “purpose and legislative intent, as well as the public policy to be served by the attorney work product privilege”.
The Court of Appeal concluded by emphasizing the “narrowness of our holding”. This is somewhat surprising given that the court’s opinion doesn’t focus on particularly unusual or specific facts. Rather, the opinion rests more generally on the purpose and public policy supporting the work product doctrine.