Disqualification; excessive review of
privileged documents. Clark v. Superior Court (Verisign, Inc.) (2011) __ Cal.App.4th __ (4th Dist., Div. 1.) Clark worked for Verisign as its chief
administrative officer. In conjunction with his employment he signed a nondisclo- sure agreement, which included a provi- sion precluding him from removing any privileged or confidential information from Verisign, and agreeing to return such information on the termination of his employment. Clark’s employment was terminated in December 2008, and in January 2009, he filed suit against Verisign, represented by the law firm of Higgs, Fletcher, and Mack (“Higgs”). During the litigation Verisign determined, based on statements made by Higgs in correspondence that it had certain privi- leged documents, that Clark had taken in violation of the nondisclosure agreement. Verisign repeatedly demanded that Higgs and Clark return all privileged docu- ments. Higgs responded that it and Clark had done nothing improper, and did not return any documents. Clark’s response to a request for pro-
duction of documents included several privileged documents, including several stamped “attorney-client privilege” or “highly confidential.” Higgs continued to refuse Verisign’s demands that it return all privileged documents and destroy all copies. Verisign then moved to disqualify
Higgs. Its motion was granted, and Higgs sought a writ. The court granted an order to show cause, and ultimately denied the petition. State Comp. Ins. Fund v. WPS, Inc.
(1999) 70 Cal.App.4th 644 (State Fund) held that an attorney who receives privi- leged documents without the holder of the privilege having waived it, must refrain from examining the documents more than essential to determine that they are privileged, and notify the sender that he or she possesses material that appears to be privileged. Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 (Rico) extended this rule to the possession of material within the work-product privi- lege.
The trial court’s finding that Higgs
failed to comply with the standards estab- lished by Rico and State Fund was support- ed by substantial evidence. The disputed documents were privileged, and Higgs reviewed the materials excessively and failed to notify Verisign that it possessed the documents. Jeffrey Isaac Ehrlich is the principal
of the Ehrlich Law Firm in Encino. His practice emphasizes insurance bad-faith and appellate litigation. A Harvard Law gradu- ate, he is certified by the State Bar of California as an appellate specialist. He has twice been selected as Appellate Lawyer of the Year by the Consumer Attorneys Association of Los Angeles.
Referral Intermediary & Trial Attorney
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www.jgrantkennedy.com J. Grant Kennedy 213.220.2521
JULY 2011 The Advocate Magazine — 91
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