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Tucker Ellis LLP v. Superior Court (Evan C. Nelson)

California Court of Appeals, First District, Third Division

June 21, 2017


         City and County of San Francisco, Superior No. CGC-13-535453 Court Hon. Harold E. Kahn, Judge

          Counsel for Petitioner: Tucker Ellis LLP, GREENBERG TRAURIG LLP Scott D. Bertzky, William Goines, Karen Rosenthal, Cindy Hamilton

          Counsel for Real Party in Interest: Evan C. Nelson, KELLER SLOAN, ROMAN & HOLLAND LLP Thomas H. Sloan, Jr. Evan C. Nelson.

          Jenkins, J.

         In this writ proceeding, we are presented with a narrow question of law concerning the attorney work product privilege as codified in Code of Civil Procedure Section 2018.030.[1] Specifically, we are asked to determine, as between an employer law firm and a former attorney employee, who is the holder of the attorney work product privilege that attaches to documents created by the attorney employee during and in the scope of his employment? We conclude that under the circumstances of this case, the holder of the attorney work product privilege is the employer law firm, petitioner Tucker Ellis LLP (Tucker Ellis), and not the former attorney employee, real party in interest Evan C. Nelson (Nelson). As a corollary to our holding, we necessarily conclude that because Tucker Ellis is the holder of the attorney work product privilege, it had no legal duty to secure Nelson's permission before it disclosed to others documents he created during and in the scope of his employment. Because respondent court held to the contrary, finding that Tucker Ellis had a legal duty to take appropriate steps to ensure that the documents were not disclosed without Nelson's permission, we shall issue a peremptory writ of mandate directing respondent court to vacate its July 19, 2016, summary adjudication order, and enter a new order consistent with this decision.

         Factual and Procedural Background

         Nelson is a California attorney specializing in asbestos defense, and was employed by Tucker Ellis as a trial attorney in the firm's Mass. Tort & Product Liability Practice Group in San Francisco beginning in November of 2007. In late 2009, Nelson was promoted to the position of “non-capital partner, ” a position he held until November of 2011, when he left Tucker Ellis to join a competing law firm in the same practice area.

         When Nelson joined Tucker Ellis, he signed an employment agreement, stating that he “agree[d] to conform to the rules, regulations and policies of the Firm.” During Nelson's employment, Tucker Ellis also provided employees with a Non-Partner Attorney Personnel Handbook, which stated, “[a]ll records and files maintained by Tucker Ellis & West LLP” were “the property of Tucker Ellis & West LLP, ” and “[a]ll documents, including email and voice mail, received, created or modified by any attorney are the property of Tucker Ellis & West LLP.” The 2007 Tucker Ellis & West LLP Practice Policy Manual similarly provided that, “Firm provided Technology Systems are Firm property.”

         As part of his employment, Nelson worked with a group of scientific consulting experts at the Gradient Corporation (Gradient). Gradient was retained by Tucker Ellis to assist in litigation for a Tucker Ellis client. In 2008, Nelson exchanged a series of emails with Gradient consultants about medical research articles relating to smoking and/or radiation (rather than asbestos) as causes of mesothelioma (hereinafter also referred to as “attorney work product emails”). Around the same time, Tucker Ellis entered into an agreement with Gradient to research existing scientific studies on the causes of mesothelioma, and summarize them in a published review article that was ultimately titled “Ionizing radiation: a risk factor for mesothelioma.”

         In September of 2011, while Nelson was still employed at Tucker Ellis, the law firm was contacted by counsel of record in Durham v. General Electric Co., et al. (Durham), a litigation matter pending in Kentucky. Durham counsel advised that Tucker Ellis would be served with a subpoena seeking documents related to payments made by Tucker Ellis to Gradient to fund medical research articles and communications between Tucker Ellis and Gradient regarding such articles. Tucker Ellis's managing partner discussed the anticipated subpoena with Nelson, albeit the parties disagree about the contents of those conversations.

         After Nelson left Tucker Ellis, the law firm was served with the anticipated subpoena issued in Ohio pursuant to an out-of-state commission in the Durham case. The subpoena sought, in pertinent part, the production of “[a]ny and all emails, letters or other communications between Tucker, Ellis & West LLP and Goodman, Gradient or Exponent regarding the research or publication” of “any literature or studies related to mesothelioma, asbestos or radiation-induced mesothelioma” funded by Tucker Ellis, including the noted published review article. Tucker Ellis reviewed the subpoena and withheld certain documents on the basis of attorney-client and the attorney work product privileges. Ultimately, Tucker Ellis produced the attorney work product emails authored by Nelson, which are the subject of this litigation. After Nelson was subpoenaed for deposition, he wrote a “clawback” letter to Tucker Ellis and Durham counsel, asserting the emails contained his privileged attorney work product and demanding they be sequestered and returned to him. Tucker Ellis did not respond to Nelson's letter.

         Nelson filed this lawsuit against Tucker Ellis, alleging claims for negligence, negligent and intentional interference with contract, negligent and intentional interference with prospective economic advantage, intentional invasion of privacy, and conversion. Nelson asserted that as a result of Tucker Ellis's production of his emails, his attorney work product was made available on the internet and disseminated to over 50 asbestos plaintiffs' attorneys, interfering with his ability to work effectively with experts in the asbestos field, and ultimately resulting in his termination from his new law firm and an inability to find new employment in his practice field.

         Tucker Ellis moved to compel arbitration of Nelson's claims pursuant to an arbitration clause in Nelson's employment agreement. Respondent court denied the motion, concluding the arbitration clause was procedurally and substantively unconscionable under California law. Tucker Ellis appealed, and we affirmed. (Nelson v. Tucker Ellis LLP (December 15, 2014 A141121) 2014 Cal.App. Unpub. LEXIS 8971 (Nelson I).) In the course of discussing whether the arbitration clause was substantively unconscionable, we stated the following:

         “Despite Tucker Ellis's arguments to the contrary, we conclude the nature of the right Nelson seeks to vindicate by his lawsuit is ‘legally indistinguishable from the nature of the rights discussed in [Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 and Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064].' [Citation.] The cause of action for an alleged intentional invasion of privacy through public disclosure of private information is tethered to both the constitutional right of privacy [citations] as recognized by the trial court, and the public policy articulated in Code of Civil Procedure sections 2018.020 and 2018.030 that writings, which reflect an attorney's impressions, conclusions, opinions, or legal research or theories, are not discoverable under any circumstances [citation]. Because Tucker Ellis could not ask Nelson to waive his attorney work product privilege ...

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