California Court of Appeals, First District, Fifth Division
San Francisco County Superior Court, No. CGC12520512, Peter J. Busch, Judge.
[Copyrighted Material Omitted]
Littler Mendelson, Lindbergh Porter and Kurt R. Bockes for Defendant and Petitioner.
Levy Vinick Burrell Hyams, Leslie F. Levy, Sharon R. Vinick and Dari E. Burrell for Plaintiff and Real Party in Interest.
Attorney Tracy Lemmon filed an employment discrimination lawsuit against her law firm employer, as well as against petitioner Chubb & Son, a division of Federal Insurance Company (Chubb), whose insureds she represented. In response to Lemmon’s request for documents relevant to her job performance, Chubb withheld documents (or redacted them) on the ground they contain privileged or confidential information of the third parties for whom Lemmon provided legal services. Further, Chubb insisted, the parties could not disclose any of the third parties’ privileged
information even to their own attorneys in this case. The trial court ordered that the documents in each party’s possession could be disclosed to their respective attorneys, and required Chubb to provide its responsive documents to its attorneys to ascertain whether the material was privileged and to comply with its discovery obligations.
Chubb petitions for a writ of mandate, contending the court’s order improperly impinges on the attorney-client privilege and the attorney duty to maintain client confidences. More specifically, Chubb urges that the order impermissibly created an implied exception to the attorney-client privilege, and unlike disclosures that have been allowed where the client holding the privilege is a party to the litigation, the clients in this instance are not parties to Lemmon’s employment action.
We will deny the petition. We hold that, for the limited purposes ordered by the trial court, the court did not err in permitting the parties (and requiring Chubb) to disclose the documents to their respective attorneys in this case. Based on the record before us, there is no meaningful distinction between an allegation of privilege as to a party’s information and an allegation of privilege as to a third party’s information.
I. FACTS AND PROCEDURAL HISTORY
Lemmon was employed as an attorney by the law firm of Bragg & Kuluva, allegedly as Chubb’s in-house counsel, beginning in 2005. She was terminated from this employment in November 2011, purportedly for making misrepresentations in a declaration she filed in court.
In May 2012, Lemmon brought this lawsuit against Chubb, Bragg & Kuluva, and Carol Kuluva (an alleged Chubb employee, attorney, and managing agent of Bragg & Kuluva). Lemmon alleged that her employment was terminated not because of a false declaration or any other aspect of her performance, but because she is a person with disabilities, requested accommodation, and took medical leave. The complaint asserted several causes of action, including disability discrimination under the California Fair Employment and Housing Act (Govt. Code, § 12940), defamation, wrongful termination, and nonpayment of wages.
A. Lemmon’s Allegations
Lemmon alleged that she consistently met or exceeded all performance expectations from the beginning of her employment through her mid-year review in 2010. Her 2010 mid-year review, which she received shortly before taking medical leave in August, allegedly stated that she had provided “excellent legal representation” and had exceeded expectations.
In August 2010, Lemmon was placed on medical leave by her doctor due to complications with a pregnancy. On November 1, 2010, she returned to full-time work, but took two additional weeks of medical leave in February 2011.
In March 2011, shortly after her return, Lemmon received her 2010 annual performance review. In contrast to her pre-leave mid-year review, her post-leave annual review allegedly stated that she “fell short of her goals” and downgraded her performance rating to “below expectations.”
In May 2011, Carol Kuluva learned that Lemmon was occasionally working from home. Although other Bragg & Kuluva attorneys also worked from home, Kuluva reprimanded Lemmon and questioned whether she was actually working. Lemmon claimed she worked from home due to the side effects of medication, and she requested, as an accommodation for her disability, that she be allowed to do so if work obligations permitted it.
In July 2011, Patrick Hoey, to whom Carol Kuluva allegedly reported, audited Lemmon’s cases. His audit findings contained negative comments, some of which related to Lemmon’s medical leaves. Also in July 2011, Lemmon received her 2011 mid-year review, which downgraded her performance in several areas.
In November 2011, Carol Kuluva accused Lemmon of violating Chubb’s “Code of Conduct” by making misrepresentations in a declaration filed with the court. In fact, Lemmon alleged, she had not made any misrepresentations, and the motion to which the declaration related was decided in favor of “Chubb’s client.” Kuluva fired Lemmon “on the spot.”
B. Lemmon’s Request for Production of Documents
Lemmon served Chubb with a request for production of documents, seeking, among other things, documents referring or relating to her work performance and the termination of her employment.
In its response to the request, Chubb interposed objections to the extent Lemmon sought confidential information of third parties, or documents or information protected from disclosure under the attorney-client privilege, the work product doctrine, or the duty of attorneys to maintain client confidences.
In the parties’ ensuing meet-and-confer exchanges, Chubb took the position that any review and redaction of responsive documents would have to be conducted by the parties themselves (e.g., Chubb and Lemmon)—and not their respective counsel in this employment litigation—because the attorney-client privilege precluded Chubb and Lemmon from disclosing the information even to their attorneys. Lemmon disagreed, but acquiesced in this procedure pending the court’s resolution of the issue.
The parties agreed that Chubb would produce documents responsive to four Lemmon’s requests (Nos. 5, 9, 17 and 18), redacted if necessary, along with a detailed privilege log, in order to tee up the issues for the court. These four requests sought documents relating or referring to “[Lemmon’s] work performance, ” “any complaint... made about or against [Lemmon] at any time, ” and “any investigation done of into the allegations which formed the basis for [Lemmon’s] termination, ” as well as documents “that [Chubb] contend[s] support its decision to terminate [Lemmon].”
In response to requests Nos. 5, 9, 17 and 18, Chubb produced unredacted and redacted documents, withheld some documents, and delivered a privilege log and, eventually, a 52-page supplemental privilege log. The responsive documents fell into four categories.
First, client feedback letters were communications from Bragg & Kuluva’s “client” (Chubb’s insured) to Carol Kuluva, after the firm had sent the client an “end of representation” letter. According to Lemmon, who received copies of at least some of the feedback letters in connection with her annual reviews, the feedback letters pertained to her performance and were not sent to solicit legal advice; Chubb nonetheless withheld these letters in their entirety, claiming a duty of confidentiality to the clients.
Second, case reviews were internal documents created by senior attorneys at Bragg & Kuluva who reviewed the files on which Lemmon worked in order to evaluate her performance and suggest alternative tactics. Chubb produced these reviews but redacted information it claimed to constitute attorney-client communications and attorney opinions regarding case strategies.
Third, internal memoranda and emails contained evaluations of Lemmon’s performance and had not been sent to clients. Chubb also produced these documents, but redacted references to communications with the client.
Fourth, Lemmon’s internal 2009 and 2010 annual and mid-year performance reviews evaluated Lemmon’s work. Chubb produced these documents but redacted direct quotes from client communications.
C. Lemmon’s Motion to Compel
Lemmon filed a motion to compel, asserting basically two issues. She maintained that the parties (e.g., Chubb, Lemmon, and Bragg & Kuluva) must provide their respective attorneys in this employment litigation with all relevant information already in their possession, including what might be arguably protected by the attorney-client privilege or the work product doctrine, so the attorneys could assert all applicable privileges and make appropriate redactions on the parties’ behalf.
In addition, Lemmon sought further production of Chubb’s responsive documents. She urged that the client feedback forms could not be withheld because they were not privileged, and could be redacted only to protect truly privileged information. She further urged that information in the internal memos, performance reviews, and case reviews relating to Lemmon’s work performance should not be redacted on the basis of attorney-client privilege or work product; even if this information might otherwise be privileged, the privilege would not apply in this case pursuant to Evidence Code section 958, which provides an exception to the attorney-client privilege for “communication[s] relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”
D. Chubb’s Opposition to the Motion to Compel
As to the issue concerning disclosure to the parties’ own attorneys, Chubb contended the attorneys should not be allowed to see the arguably privileged and confidential documents and information of Chubb’s insureds, because “Defendant [Chubb] and Plaintiff [Lemmon] are duty bound” to maintain the confidences of Chubb’s “third party clients.”
In regard to the document production, Chubb contended that the documents it withheld and the information it redacted were not subject to disclosure. Chubb claimed the client feedback letters constituted communications in the course of the attorney-client relationship between Kuluva and 23 third party clients who had retained Bragg & Kuluva to represent them in litigation. As to the case reviews, internal memos, emails and performance reviews, many of the documents contained descriptions of communications between attorney and client, including legal strategies. In addition, Chubb argued, the exception to the ...