Nature of the Case
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Facts
Mitsubishi (Ds) and the California Department of Transportation (Caltrans), were sued by various Ps after a Mitsubishi Montero rolled over while being driven on a freeway. D representatives met with their lawyers, James Yukevich and Alexander Calfo, and two designated defense experts to discuss their litigation strategy and vulnerabilities. D's case manager, Jerome Rowley, also attended the meeting. Rowley and Yukevich had worked together over a few years. Yukevich asked Rowley to take notes at the meeting and indicated specific areas to be summarized. The trial court found that Rowley, who had typed the notes on Yukevich's computer, had acted as Yukevich's paralegal. At the end of the six-hour session, Rowley returned the computer and never saw a printed version of the notes. Yukevich printed only one copy of the notes, which he later edited and annotated. Yukevich never intentionally showed the notes to anyone, and the court determined that the sole purpose of the document was to help Yukevich defend the case. The notes are written in a dialogue style and summarize conversations among Yukevich, Calfo, and the experts. They are dated, but not labeled “confidential” or “work product.” Yukevich deposed Ps' expert witness, Anthony Sances, at the offices of plaintiffs' counsel, Raymond Johnson. Yukevich, court reporter Karen Kay, and Caltrans counsel Darin Flagg were told that Johnson and Sances would be late for the deposition. Yukevich went to the restroom, leaving his briefcase, computer, and case file in the room. The printed document from the strategy session was in the case file. Johnson and Sances arrived. Johnson asked Kay and Flagg to leave the conference room. This left only Ps' representatives and counsel in the conference room. Yukevich returned to find Kay and Flagg standing outside. Yukevich waited approximately five minutes, then knocked and asked to retrieve his briefcase, computer, and file. After a brief delay, he was allowed to do so. Johnson acquired Yukevich's notes. Johnson maintained that they were accidentally given to him by the court reporter. Yukevich insisted that they were taken from his file. D moved to disqualify Ps' attorneys and experts. The court reporter did not remember ever having given exhibits to an attorney. She also testified that she had never seen the document in question. The trial court found that the Sances deposition took place over approximately eight hours. It was a document-intense session and documents were placed on the conference table. The court ultimately concluded that D had failed to establish that Johnson had taken the notes from Yukevich's file. It thus ruled that Johnson came into the document's possession through inadvertence. The court found the document was not labeled. Johnson admitted that he knew within a minute or two that the document related to Ds' case and that Yukevich did not intend to produce it and that it would be a “powerful impeachment document.” Johnson made a copy of the document. He gave copies to his cocounsel and his experts, all of whom studied the document. Johnson specifically discussed the contents of the document with each of his experts. Johnson used them during the deposition of defense expert Geoffrey Germane. When Yukevich realized that Johnson had his only copy of the strategy session notes and had used it at the deposition, he and Calfo wrote to Johnson demanding the return of all duplicates. Ds moved to disqualify Ps' legal team and their experts on the ground that they had become privy to and had used Yukevich's work product. The court concluded that the notes were absolutely privileged by the work product rule. The court also held that Johnson had acted unethically by examining the document more closely than was necessary to determine that its contents were confidential, by failing to notify Yukevich that he had a copy of the document, and by surreptitiously using it to gain maximum adversarial value from it. The court ordered Ps' attorneys and experts disqualified. The Court of Appeal affirmed. Ps appealed.
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