Appellate Case No. A153661
Another interesting published opinion, this time between an attorney and his former employer law firm. This is the fourth appellate opinion relating to this dispute, which has resulted in a series of self-contradictory rulings from the Court of Appeal.
Attorney Evan Nelson specializes in asbestos defense. He previously worked for defendant law firm Tucker Ellis, LLP, ultimately being promoted to non-equity partner in 2009, which position he held for about two years. He then left Tucker Ellis to start his own law firm.
In 2008, while working on a case for Tucker Ellis, Nelson exchanged emails with experts and consultants relating to medical research articles about smoking and/or radiation (v. asbestos) as causes of mesothelioma. Tucker Ellis ultimately retained the experts’ employer to research scientific studies on this topic and summarize them in a published review article, which it then presumably intended to use in pending or future defense litigation.
In September 2011, while Nelson was still employed by Tucker Ellis, the firm was contacted by counsel in a pending asbestos case in Kentucky. Kentucky counsel advised that it was going to subpoena records from Tucker Ellis relating to Tucker Ellis’s communications and transactions with the aforementioned consultants. The parties disputed whether Nelson was notified about this subpoena and how exactly Tucker Ellis intended to respond thereto.
After Nelson left Tucker Ellis’s employ, Kentucky counsel served the subpoena. Tucker Ellis ultimately withheld some documents but served Nelson’s aforementioned emails with the experts / consultants to Kentucky counsel. Nelson found out about this and demanded that Kentucky counsel send these materials to him personally.
Nelson then filed this underlying lawsuit against Tucker Ellis. He has alleged claims for negligence, interference with contract, interference with prospective economic relations, invasion of privacy, and conversion. The crux of his claims appears to be that his emails exchanged with the aforementioned experts belong to him personally and not his employer law firm, that they constitute his personal attorney work product, and that by responding to the Kentucky counsel’s subpoena (which emails then were made part of the public record and were disseminated online to various asbestos plaintiffs’ attorneys), Tucker Ellis got Nelson fired from his subsequent employer and made it impossible for him to get hired by anyone else.
Nelson I
Tucker Ellis unsuccessfully petitioned the trial court to send this dispute to arbitration. Both the trial court and Court of Appeal held in an unpublished opinion that the arbitration provisions in Nelson’s employment agreement were unenforceable for being procedurally and substantively unconscionable. Nelson v. Tucker Ellis, LLP (Dec. 15, 2014) (“Nelson I”), Appellate Op. A141121.
Nelson II
Tucker Ellis then filed an anti-SLAPP motion, which the trial court denied and the Court of Appeal later affirmed, via non-published opinion. In that opinion – Nelson v. Tucker Ellis LLP (“Nelson II”) (Nov. 24, 2015) 2015 WL 7568165, both the trial court and Court of Appeal concluded that none of Nelson’s causes of action targeted Tucker Ellis’s response to Kentucky counsel’s subpoena and production of Nelson’s documents to counsel. It is important to note that Nelson II was issued pre-Baral v. Schnitt (2016) 1 Cal.5th 376, which may have substantially changed the Nelson Court’s analysis.
Instead, the Nelson II Court concluded that “the gravamen of the complaint is that Tucker Ellis breached a professional and ethical duty it owed to Plaintiff to take the necessary precautions to protect Plaintiff’s work product,” such as by failing to assert the work product doctrine on behalf of Nelson, by producing the documents after allegedly advising Nelson it would not do so, and by failing to take steps to mitigate the resulting damage, such as by pursuing a protective order or requesting the return of the documents after receiving Nelson’s “clawback” demand. Nelson II at *2. The Court relied on caselaw whereby the attorney work product generated by counsel belongs to the individual attorney generating the documents, apparently regardless of any contract or employment agreement terms between counsel’s employer and counsel. Id. at *3 (citing State Comp. Ins. Fund v. Sup. Ct. (2001) 91 Cal.App.4th 1080, 1091). The State Comp. opinion did not analyze this privilege or doctrine as between an individual attorney and his or her law firm employer, so it is not particularly helpful in this context. The Nelson II Court concluded that the law firm served as the “custodian” of Nelson’s work product and allegedly breached its “separate independent legal” and custodial “duty” to Nelson, as opposed to being “a” or “the” holder of the work product as Nelson’s employer while he generated said work product. Further per Nelson II, Nelson was not really targeting the firm’s litigation-related conduct because these allegations were just “lur[king] in the background,” never mind that Nelson would have no cognizable claim had his former employer not responded to the subpoena with these materials. Id. at *3.
The Nelson II Court otherwise relied on SLAPP opinions analyzing attorney malpractice claims (which are difficult to reconcile with the anti-SLAPP statute and litigation privilege and basically scramble the analysis) to reason that because attorney malpractice claims are permitted to squeak past anti-SLAPP motions, so should Nelson’s claims here. Nelson II at *4.
Nelson III
Upon remand, the parties conducted discovery, and Nelson filed a motion for summary adjudication, demanding that the trial court hold that Tucker Ellis owed this separate, custodial duty to Nelson personally to preserve “his” attorney work product. Tucker Ellis, LLP v. Sup. Ct. (2017) 12 Cal.App.5th 1233, 1239 (“Nelson III”). The trial court granted his motion. Id. Tucker Ellis then filed a Writ for Mandate, demanding reversal on appeal on the grounds that Tucker Ellis as Nelson’s employer was the holder of the work product doctrine privilege, not Nelson individually.
Despite holding otherwise in Nelson II, this time the Court of Appeal decided that Tucker Ellis was correct and that in fact, the firm and not Nelson personally was the holder of the privilege. Nelson III at 1240. I have not read the lower court papers so I cannot tell whether the firm made the same arguments and presented the same evidence in response to Nelson’s MSA that it presented as part of its earlier SLAPP presentation. I imagine that the presentations were substantially the same.
Ultimately, the Nelson III Court explained with substantial citation to prior caselaw and with substantial practical analysis that the firm was the holder of the privilege, not the individual attorney. Such an interpretation of C.C.P. 2018.030 would make the most practical sense, given the fact that oftentimes the work product is generated by multiple attorneys working for the same law firm. It would be too difficult to resolve which specific individual attorney held the privilege under such circumstances. Nelson III at 1247. The Nelson III Court emphasized that its ruling was “narrow[]” and limited to the specific facts at issue there. Id. at 1248.
Procedural Posture in Nelson IV
Upon remand from Nelson III, Tucker Ellis filed a motion for judgment on the pleadings, arguing that per Nelson III, “Nelson had no viable legal theory.” Nelson v. Tucker Ellis, LLP (2020) 2020 WL 212913 (“Nelson IV”). The trial court granted this motion without leave to amend, dismissing Nelson’s claims.
The trial court separately held in its ruling on Tucker Ellis’s MJOP that Nelson’s claims were barred by the litigation privilege. Nelson IV at *6.
The trial court’s litigation privilege conclusion should have brought Nelson’s claims within the protection of the anti-SLAPP statute years prior when Tucker Ellis first filed an anti-SLAPP Motion. See e.g., A.F. Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc. (2006) 137 Cal.App.4th 1118, 1125–26 (quoting Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1467, fn. 3) [“clauses (1) and (2) of section 425.16, subdivision (e) … are coextensive with the litigation privilege of Civil Code section 47, subdivision (b).”]. Likewise, the Court of Appeals’s holding here on Tucker Ellis’s MJOP – that Nelson’s claims have no legal merit – should have compelled the granting of Tucker Ellis’s anti-SLAPP motion the first time around. Fortunately for Tucker Ellis, the prior adverse ruling on its anti-SLAPP motion had no preclusive effect on its arguments on these other motions here, per C.C.P. § 425.16(b)(3).
Nelson appealed the MJOP, and the Nelson VI Court has affirmed, essentially ending this dispute in Tucker Ellis’s favor. Nelson IV at *6.
Analysis
Ironically, the Nelson IV Court concluded that it was compelled to affirm the trial court’s decision – based on Nelson III – per the doctrine of the law of the case, which applies “‘even if the Court that issued the opinion becomes convinced in a subsequent consideration that the former opinion is erroneous.’” Nelson IV at *7 (quoting Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2007) 157 Cal.App.4th 149, 156).
In self-contradictory fashion, the Nelson IV Court concluded that “the tortious conduct at the heart of Nelson’s lawsuit is Tucker Ellis’s disclosure of attorney work product communications to a third party in response to a valid subpoena commissioned by an out-of-state court. On its face, this conduct is [litigation privileged]” and “communicative… conduct.” Nelson VI at *21; compare with Nelson II at *4 [“Nelson is not seeking to hold Tucker Ellis liable for responding to the subpoena, but for its violation of its independent legal duty as a custodian of privileged attorney work product to take actions necessary to ensure that the materials are not disclosed improperly”].
The Nelson VI Court further rejected Nelson’s prior winning arguments here: “While Nelson focuses on allegations relating to Tucker Ellis’s failures… these failures to act when responding to the subpoena were necessary corollaries of Tucker Ellis’s act of disclosing material, which cannot be distinguished for purposes of our analysis. To hold otherwise would thwart application of the litigation privilege when in fact we are supposed to broadly apply it….” Nelson VI at *22; compare with Nelson II at *3 [internal quotations omitted] [“Tucker Ellis then argues that it met its burden on the first prong of the section 425.16 analysis because all of the causes of action against it are based on its production of certain documents in response to a subpoena in an unrelated litigation, which conduct is protected under California law. We disagree…. ‘The additional fact that protected activity [response to a subpoena] may lurk in the background—and may explain why the rift between the parties arose in the first place—does not transform [this action] into a SLAPP suit.’”].
The Nelson VI Court even shut down Nelson’s efforts to revive his winning arguments in Nelson II by opining that his arguments are “yet another attempt to relitigate our previous holding” in Nelson III, as if Nelson II never happened. Nelson VI at *23. The Nelson VI Court otherwise wholly ignored its prior rulings on these same topics in Nelson II. I suppose that per C.C.P. § 425.16(b)(3), Nelson II doesn’t count, but still.
Fourth time’s the charm?
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