Rico v. Mitsubishi: The Inadvertent Disclosure of California's Flawed Work Product Doctrine

Abstract

Copyright ? 2009 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t J D. Candidate, University of California, Berkeley, School of Law, 2010; B.A., Northwestern University, 2005. Special thanks to Professor Hanlon for his invaluable guidance. 1. Trina Jones, Inadvertent Disclosure of Privileged Information and the Law of Mistake: Using Substantive Legal Principles to Guide Ethical Decision Making, 48 Emory L.J. 1255, 1263 (1999) (Inadvertent disclosure involves two values that are central to the law of lawyering: confidentiality and zealous representation of client interests. In the inadvertent disclosure context, these values conflict and produce a case of true ethical dilemma, a situation in which neither choice made by the receiving lawyer can easily be justified). Courts throughout the nation have also weighed these conflicting values. See, e.g., Amgen, Inc. v. Hoechst Marion Roussel, Inc., 190 F.R.D. 287, 291 (D. Mass. 2000) (adopting a rule that strikes a balance between [the] two rigid solutions of always waiving a privilege, thus favoring the side of zealous representation, and never waiving the privilege, thus favoring protection of privilege); see also SEC v. Cassano, 189 F.R.D. 83 (S.D.N.Y. 1999). 2. Model Rules of Prof'l Conduct R. 1.3 cmt. (A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf). 3. See, e.g., Cal. Civ. Proc. Code ? 2018.020 (West 2007) (California attorney work product protection); Fed. R. Civ. P. 26(b)(3)(A) (federal attorney work product protection); see also Cal. Evid. Code ? 954 (West 1995) (California attorney-client privilege). Zealous client representation and evidentiary shields provided to protected or privileged documents are, by no means, the only interests at stake in cases of inadvertent disclosure. See, e.g., State Comp. Ins. Fund v. WPS, Inc., 82 Cal. Rptr. 2d 799, 808 (Cal. Ct. App. 1999) (An attorney has an obligation not only to protect his client's interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.).