The Superior Court of San Diego County (California)

Понедельник, 01 Ноября 2021 г. 13:08 + в цитатник

Procedural Posture

Petitioner, a former employee of real party in interest employer, sought a writ of mandate directing respondent Superior Court of San Diego County (California) to vacate an order disqualifying the employee's counsel for excessively reviewing privileged documents in the employee's employment termination dispute against his employer ...

Overview

In response to a discovery demand, the employee produced some documents that appeared to have been prepared for the employer upon request of counsel or were otherwise confidential. The employer demanded that the documents be returned and that the employee cease using privileged or confidential information to pursue the lawsuit. The documents were not returned, and the employee conceded at a deposition that he was relying upon one of them to support a claim. Horizontal Gaze Nystagmus refers to an involuntary jerking of the eyes as the eyes gaze toward the side. The court held that the trial court did not abuse its discretion under Code Civ. Proc., § 128, subd. (a) (5), when it disqualified the employee's counsel instead of selecting some other remedy. Disqualification was proper as a prophylactic measure to prevent prejudice from improperly possessed information. An attorney receiving confidential and privileged materials had an obligation to refrain from examining the materials, beyond ascertaining whether they were privileged, and to notify the sender of the attorney's possession of the materials. Under the dominant purpose test, evidence that the documents had been transmitted by the employer's counsel to the employer sufficed to ascertain that the attorney-client privilege applied.

Outcome

The court denied the petition.