whether the attorney-client privilege has been waived. In Mendenhall v. Barber-Greene Co., 531 F. Supp. at 951, a patent attorney, not the trial counsel, left attorney-client communications in files the patent attorney produced for inspection. Opposing counsel reviewed the files and requested copies of four (4) attorney-client letters. The trial counsel refused to provide the copies and asserted the attorney-client privilege. The court stated the subjective test for waiver and held that no waiver occurs simply because an attorney inadvertently discloses attorney-client communications. Id. at 954-55. The court required more than negligence of counsel before the client would be deemed to have intentionally abandoned the attorney-client privilege. Id. at 955. Other courts agree. See also Georgetown Manor, Inc. v. Ethan Allen, Inc., 753 F. Supp. 936, 938 (S.D. Fla. 1991); Kansas-Nebraska Natural Gas Co., Inc. v. Marathon Oil Co., 109 F.R.D. 12, 21 (D. Neb. 1985).
An evaluation of the circumstances approach has appeared even in cases adopting other tests for resolving waiver. The court, in In re Sealed Case, 278 U.S. App. D.C. 188, 877 F.2d 976, 980 (D.C. Cir. 1989), rejected the evaluation of the circumstances test in favor of a strict responsibility test, stating that it would not distinguish between various degrees of voluntariness in waivers of the attorney-client privilege. However, the court recognized an exception to this rule for court-compelled disclosures or extraordinary circumstances. Id. In Helman v. Murry's Steaks, Inc., 728 F. Supp. 1099 (D. Del. 1990), an attorney witness produced attorney-client communications that the client's trial counsel recovered. The Helman court cited Mendenhall with approval but applied some of the Hartford factors to determine whether the attorney was more than negligent. Id. at 1104.
The trend under federal common law appears to be toward an evaluation of circumstances. The Hartford factors for evaluating an inadvertent disclosure of privileged communications are discussed in part I.A, relating to Cunningham's failure to properly assert the attorney-client privilege. The production by Solomon, instead of by the client or a party, is one factor to be considered. As explained above, under federal common law, Cunningham has waived the privilege for his October 4, 1991, letter to Solomon. Although this court believes that federal common law should supplant state law, it need not resolve the conflict. A finding of waiver is still compelled as a result of Cunningham's improper assertion of the attorney-client privilege.
C. The Crime-Fraud Exception
As a further ground for opposing Cunningham's request for a protective order, Connecticut Mutual claims that plaintiff has been involved in a fraudulent scheme that destroys the attorney-client privilege.
This issue differs from the procedural waivers discussed above and, in a diversity case, raises a question of state law. Section 956 of the California Evidence Code provides: "There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud." Cal. Evid. Code § 956 (West 1966).
In California, for the crime-fraud exception to apply, two elements must be shown. First, the party opposing the privilege must establish a prima facie case of fraud. BP Alaska Exploration, Inc. v. Superior Court, 199 Cal. App. 3d 1240, 1262, 245 Cal. Rptr. 682, 696 (1988); Nowell v. Superior Court, 223 Cal. App. 2d 652, 657, 36 Cal. Rptr. 21, 25 (1963). Second, the party must also establish a reasonable relationship between the fraud and the attorney-client communication. BP Alaska, 199 Cal. App. 3d at 1268, 245 Cal. Rptr. at 701.
1. Connecticut Mutual Has Made a Prima Facie Case of Fraud
A prima facie showing of fraud consists of evidence from which reasonable inferences can be drawn to establish the fraud. BP Alaska, 199 Cal. App. 3d at 1262, 245 Cal. Rptr. at 696-97. The elements of fraud necessary to establish the exception are: (1) a misrepresentation of material fact, (2) knowledge of the representation's falsity, (3) intent to deceive, and (4) the right to rely on the representation. Id. at 1263, 245 Cal. Rptr. at 697.
The court in its discretion may conduct an in camera review of privileged communications to resolve whether they fall within the crime-fraud exception. However, only nonprivileged relevant evidence lawfully obtained is used to determine whether to conduct an in camera review. See United States v. Zolin, 491 U.S. 554, 574, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989). The party seeking disclosure must establish facts "to support a good faith belief by a reasonable person" that the exception applies. Id. at 572. The evidence does not have to be "independent" of the contested communication. Id. at 574. The same evidence used to determine whether to conduct an in camera review may also provide the basis for finding that the crime-fraud exception applies.
Even assuming that the October 4, 1991, letter remains privileged, Connecticut Mutual has shown sufficient nonprivileged evidence, independent of the letter, to establish a prima facie case for finding that the letter is reasonably related to a future or on-going fraud.
The plaintiff and his attorney, Gerald Solomon, made several representations to Connecticut Mutual regarding Cunningham's ability to work. On September 22, 1992, Gerald Solomon wrote to James Taylor, of Connecticut Mutual, and stated:
You made several comments relating to allegations of Mr. Cunningham's alleged interest in such business entities as Su-Dan Holdings, Portofino, Scalini's, etc. You eluded to the fact that "public records" indicate that Mr. Cunningham is employed in such ventures. The is [sic] not true.