Search

Attributes

This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 07:10:08 (UTC).

C. FREDERICK WEHBA VS GREGORY M. BORDO

Case Summary

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.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7536

  • Filing Date:

    05/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Property Fraud

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LISA HART COLE

NANCY L. NEWMAN

BOBBI TILLMON

 

Party Details

Plaintiffs and Cross Defendants

WEHBA C. FREDERICK

WEIHBA II C. FREDERICK

WEIHBA C. FREDERICK II

Defendants and Cross Plaintiffs

BORDO GREGORY M.

BLANK ROME LLP

Attorney/Law Firm Details

Plaintiff Attorneys

GAMMILL DAVID W.

CAROTHERS DISANTE & FREUDENBERGER CAROTHERS DISANTE & FREUDENBERGER

PETOYAN MARCUS

GERAGOS & GERAGOS

CARLTON DISANTE & FREUDENBERGER LLP

Defendant Attorneys

HINDS DESMOND J.

MEYER FILOMENA E

MEYER FILOMENA

FILOMENA MEYER

 

Court Documents

Notice of Related Case

8/25/2017: Notice of Related Case

Unknown

8/29/2017: Unknown

Unknown

9/13/2017: Unknown

Unknown

9/13/2017: Unknown

Minute Order

10/12/2017: Minute Order

Minute Order

10/18/2017: Minute Order

Notice of Ruling

10/24/2017: Notice of Ruling

Proof of Service (not Summons and Complaint)

11/3/2017: Proof of Service (not Summons and Complaint)

Unknown

1/30/2018: Unknown

Unknown

2/9/2018: Unknown

Brief

2/9/2018: Brief

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

2/20/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Minute Order

2/21/2018: Minute Order

Case Management Statement

4/3/2018: Case Management Statement

Unknown

6/1/2018: Unknown

Reply

10/24/2018: Reply

Case Management Statement

4/29/2019: Case Management Statement

Minute Order

5/14/2019: Minute Order

67 More Documents Available

 

Docket Entries

  • 05/29/2019
  • Application And Order For Appointment of Guardian Ad Litem; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 05/14/2019
  • at 08:30 AM in Department O; Case Management Conference - Held

    Read MoreRead Less
  • 05/14/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

    Read MoreRead Less
  • 05/03/2019
  • Answer; Filed by C. FREDERICK WEHBA (Cross-Defendant); C. FREDERICK WEIHBA, II (Cross-Defendant)

    Read MoreRead Less
  • 05/01/2019
  • Cross-Complaint; Filed by BLANK ROME, LLP (Cross-Complainant)

    Read MoreRead Less
  • 05/01/2019
  • Case Management Statement; Filed by GREGORY M. BORDO (Defendant); BLANK ROME, LLP (Defendant)

    Read MoreRead Less
  • 05/01/2019
  • Summons (on Complaint); Filed by BLANK ROME, LLP (Defendant)

    Read MoreRead Less
  • 04/29/2019
  • Case Management Statement; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 04/10/2019
  • 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 Court

    Read MoreRead Less
  • 04/08/2019
  • Answer (to Third Amended Complaint); Filed by GREGORY M. BORDO (Defendant); BLANK ROME, LLP (Defendant)

    Read MoreRead Less
145 More Docket Entries
  • 06/16/2017
  • Ntc and Acknowledgement of Receipt (RE: BLANK ROME, LLP ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 06/16/2017
  • Ntc and Acknowledgement of Receipt (RE: GREGORY M. BORDO ); Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 06/16/2017
  • Notice and Acknowledgment of Receipt; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 05/18/2017
  • First Amended Complaint; Filed by Attorney for Plaintiff

    Read MoreRead Less
  • 05/18/2017
  • First Amended Complaint; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 05/17/2017
  • Complaint Filed

    Read MoreRead Less
  • 05/17/2017
  • Summons; Filed by Plaintiff

    Read MoreRead Less
  • 05/17/2017
  • Civil Case Cover Sheet; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 05/17/2017
  • Complaint; Filed by C. FREDERICK WEHBA (Plaintiff); C. FREDERICK WEIHBA, II (Plaintiff)

    Read MoreRead Less
  • 05/17/2017
  • Summons Filed; Filed by Attorney for Plaintiff

    Read MoreRead Less

Tentative Rulings

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

POS: OK

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

TENTATIVE RULING

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. Co.) (1984) 37 Cal.3d 591, 604. There may be circumstances under which the attorney-client privilege is impliedly waived by the claims or defenses raised by the client. Id. For example, “fundamental fairness” may require disclosure of otherwise privileged communications where the client places in issue the decisions, conclusions and mental state of the attorney when he or she advised the client. Id. at 894.

“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.

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where Blank Rome LLP is a litigant

Latest cases represented by Lawyer HINDS DESMOND JOSEPH