On 05/17/2017 C FREDERICK WEHBA filed a Property - Other Property Fraud lawsuit against GREGORY M BORDO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LISA HART COLE, NANCY L. NEWMAN and BOBBI TILLMON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LISA HART COLE
NANCY L. NEWMAN
WEHBA C. FREDERICK
WEIHBA II C. FREDERICK
WEIHBA C. FREDERICK II
BORDO GREGORY M.
BLANK ROME LLP
GAMMILL DAVID W.
CAROTHERS DISANTE & FREUDENBERGER CAROTHERS DISANTE & FREUDENBERGER
GERAGOS & GERAGOS
CARLTON DISANTE & FREUDENBERGER LLP
HINDS DESMOND J.
MEYER FILOMENA E
8/25/2017: Notice of Related Case
10/12/2017: Minute Order
10/18/2017: Minute Order
10/24/2017: Notice of Ruling
11/3/2017: Proof of Service (not Summons and Complaint)
2/20/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
2/21/2018: Minute Order
4/3/2018: Case Management Statement
4/29/2019: Case Management Statement
5/14/2019: Minute Order
Application And Order For Appointment of Guardian Ad Litem; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
at 08:30 AM in Department O; Case Management Conference - HeldRead MoreRead Less
Minute Order ( (Case Management Conference)); Filed by ClerkRead MoreRead Less
Answer; Filed by C. FREDERICK WEHBA (Cross-Defendant); C. FREDERICK WEIHBA, II (Cross-Defendant)Read MoreRead Less
Cross-Complaint; Filed by BLANK ROME, LLP (Cross-Complainant)Read MoreRead Less
Case Management Statement; Filed by GREGORY M. BORDO (Defendant); BLANK ROME, LLP (Defendant)Read MoreRead Less
Summons (on Complaint); Filed by BLANK ROME, LLP (Defendant)Read MoreRead Less
Case Management Statement; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
at 08:30 AM in Department O; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (to the Third Amended Complaint and Motion to Strike) - Not Held - Rescheduled by CourtRead MoreRead Less
Answer (to Third Amended Complaint); Filed by GREGORY M. BORDO (Defendant); BLANK ROME, LLP (Defendant)Read MoreRead Less
Ntc and Acknowledgement of Receipt (RE: BLANK ROME, LLP ); Filed by Attorney for PlaintiffRead MoreRead Less
Ntc and Acknowledgement of Receipt (RE: GREGORY M. BORDO ); Filed by Attorney for PlaintiffRead MoreRead Less
Notice and Acknowledgment of Receipt; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
First Amended Complaint; Filed by Attorney for PlaintiffRead MoreRead Less
First Amended Complaint; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
Complaint FiledRead MoreRead Less
Summons; Filed by PlaintiffRead MoreRead Less
Civil Case Cover Sheet; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
Complaint; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)Read MoreRead Less
Summons Filed; Filed by Attorney for PlaintiffRead MoreRead Less
Case Number: SC127536 Hearing Date: October 20, 2020 Dept: O
Case Name: Wehba, et al. v. Bordo, et al.
Case No.: SC127536
Complaint Filed: 5-17-17
Hearing Date: 10-20-20
Discovery C/O: 5-28-21
Calendar No.: 5
Discover Motion C/O: 6-14-21
Trial Date: 6-28-21
SUBJECT: MOTION FOR AN ORDER DETERMINING THAT PLAINTIFFS WAIVED THE ATTORNEY-CLIENT PRIVILEGE BY FAILING TO TAKE REASONABLE STEPS TO AVOID DISCLOSURE OF CONTENTS STORED ON A COMPUTER HARD DRIVE PRODUCED TO DEFENDANTS.
MOVING PARTY: Defendants Blank Rome, LLP and Gregory M. Bordo
RESP. PARTY: Plaintiffs C. Frederick Wehba and C. Frederick Wehba II
Defendants’ Motion for An Order Determining that Plaintiffs Waived the Attorney-Client Privilege by Failing to Take Reasonable Steps to Avoid Disclosure of Contents Stored on a Computer Hard Drive Produced to Defendants is DENIED.
I. Plaintiffs’ production of privileged documents was inadvertent and did not waive any attorney client privilege.
The client is the holder of the attorney client privilege. Ev.C. §954. “Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyer-client privilege)…is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.” Evid. Code, § 912. Upon establishment of the attorney client privilege, the burden shifts to the party seeking disclosure to establish waiver or some other exception to the attorney client privilege. Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 745.
“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.” State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 656–57.
“[T]he State Fund rule requires the attorney to review the documents no more than necessary to determine whether they are privileged, notify the privilege holder the attorney has documents that appear to be privileged, and refrain from using the documents until the parties or the court resolves any dispute about their privileged nature. The receiving attorney's reasonable belief the privilege holder waived the privilege or an exception to the privilege applies does not vitiate the attorney's State Fund duties. The trial court must determine whether the holder waived the privilege or an exception applies if the parties fail to reach an agreement. The receiving attorney assumes the risk of disqualification when that attorney elects to use the documents before the parties or the trial court has resolved the dispute over their privileged nature and the documents ultimately are found to be privileged.” McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1092–93 (obligations created under State Fund apply regardless of how or from whom counsel inadvertently received privileged documents).
“[I]t is clear that when privileged documents have been disclosed either in response to the request of a government agency or inadvertently in the course of civil discovery, no waiver of the privilege will occur if the holder of the privilege has taken reasonable steps under the circumstances to prevent disclosure.” Regents of University of California v. Superior Court (2008) 165 Cal.App.4th 672, 683. However, “[c]ase law has construed Evidence Code section 912 restrictively.…“Based on the language of Evidence Code section 912,” the appellate court [in State Fund] held “that ‘waiver’ does not include accidental, inadvertent disclosure of privileged information by the attorney.” (State Fund, at p. 654, 82 Cal.Rptr.2d 799.) It quoted with approval from another case that had found no waiver of the attorney-client privilege in similar circumstances. “ ‘[Plaintiff] invites us to adopt a “gotcha” theory of waiver, in which an underling's slip-up in a document production becomes the equivalent of actual consent. We decline. The substance of an inadvertent disclosure under such circumstances demonstrates that there was no voluntary release.’ (Citations.)” Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176, 1186–1187.
In November 20, 2019, Plaintiffs produced the hard drive believing it to be inoperable and any documents contained therein were irretrievable. See Dec. of K. Corley in Support of Motion, ¶9; Opposition, Dec. of M. Petoyan, ¶4. Defendants, however, were able to retrieve documents from the hard drive at their own expense. By 12-16-19, Plaintiffs knew that Defendants had access to documents from the hard drive, as evidenced by Plaintiffs’ Request For Production (RFP) served on that date requesting production of “all DOCUMENTS obtained by Defendants from the hard drive provided to Defendants by Plaintiffs for inspection and data retrieval on 11-20-19.” See Dec. of K. Corley, ¶12. In response to Plaintiffs’ RFP, Defendant offered to produce the documents if Plaintiff shared the cost to associated with retrieving the content within the damage hard drive. Id. at ¶¶13 and 16. The offer was made once on 1-2-20 and again, on 3-31-20. Plaintiffs did not respond to either offer.
Defendants informed Plaintiff on 4-20-20 that during their review of the retrieved documents, they identified some documents that could be attorney client privileged. In response to the letter, Plaintiff sent a letter on 4-27-20 asserting the attorney client privilege for the first time since producing the hard drive on 11-20-19. See Dec. of K. Corley, ¶¶18-19, Exs. C and D. Plaintiffs’ counsel makes a vague statement that “in all my conversations with opposing counsel about these issues, I made I expressly clear that we were asserting relevant privileges to the contents at issue.” See Opposition, Dec. of M. Petoyan, ¶8. Defendants dispute this assertion and claim the first assertion of privilege was in the 4-27-20 letter.
Plaintiffs produced the hard drive with the belief that it was inoperable on 11-20-19. Plaintiffs therefore had no ability to review the contents of the hard drive prior to production, nor is there any evidence in the record establishing Plaintiffs’ knowledge of potentially privileged documents on the hard drive or Plaintiffs’ knowledge that the contents could be retrieved from the hard drive. The hard drive also contained approximately 7,500,000 pages of documents.
Although Plaintiffs knew that Defendants were able to retrieve documents by December 2019, by then the hard drive had already been produced. Once Defendants began to review the documents in April 2020 and informed Plaintiffs that they encountered potentially privileged documents during the review, Plaintiffs promptly asserted the attorney client privilege and claimed those documents were inadvertently produced.
Under these circumstances, the Court finds the Defendants have failed to meet their burden to show the Defendants waived the attorney client privilege. Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 745.
The motion to find waiver based on production of the documents is DENIED.
II. Defendants fail to establish that Plaintiff has impliedly waived the attorney client privilege as to any and all attorney client privileged documents on the hard drive.
An implied waiver of the attorney
client privilege may occur where the party claiming the privilege has placed
the privileged communication “directly at issue and ... disclosure is essential
for a fair adjudication of the action.” Kaiser
Found. Hosps. v. Sup.Ct. (Smee) (1998) 66 CA4th 1217, 1226. If the communication goes to the heart of the
claim in controversy, “fundamental fairness” may require that privileged
matters be disclosed in order for the litigation to proceed. See Mitchell v. Sup.Ct. (Shell Oil.
“There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” EC §958. “The wording of section 958 is broad, but case law has clarified that the exception is limited to communications between the lawyer charging or charged with a breach of duty, on the one hand, and the client charging or charged with a breach of duty, on the other. Thus, a legal malpractice defendant cannot invoke the exception in order to permit discovery of communications between the plaintiff and the attorney who represents the plaintiff in the malpractice action. Likewise, a legal malpractice plaintiff cannot invoke the exception in order to permit discovery of communications between the defendant attorney “and other clients of his not privy to the relationship between” the defendant and the plaintiff.” Anten v. Superior Court (2015) 233 Cal.App.4th 1254, 1259.
The Court cannot find that each and every single document that is subject to the attorney client privilege recovered from the hard drive has been placed “directly at issue” and that “disclosure is essential for a fair adjudication of the action.” Defendants have not made this showing as to a particular document or a well-defined category of documents. While the Court could find implied waiver based on a well-defined category of documents as reflected on a privilege log, the category defined here is “every document produced on the hard drive.” At this time, there has been no review of the attorney client documents by Plaintiffs or a proper privilege log provided so that Defendants can claim implied waiver as to specific documents.
For the same reasons, the Court cannot issue an order finding the privileged waived under EC §958. While EC §958 clearly waives the attorney client privilege as to any communications between Plaintiffs and Defendants relevant to the alleged breach, it is unclear whether there are documents that fall within that category on the hard drive, or whether Plaintiffs would even withhold such documents based on privilege once they have the opportunity to review the retrieved documents.
The motion to deem the attorney client privilege impliedly waived based on the fundamental fairness doctrine and EC §958 is DENIED.
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