Christian Johnson was an employee of the California Department of Transportation, or “Caltrans.” He sued his employer for harassment and retaliation. While the lawsuit was pending, in January, 2022, Paul Brown, an attorney for Caltrans, sent an email to Nicolas Duncan, Johnson’s supervisor. The email did not make its way into the court record, but it apparently dealt with what Brown believed were shortcomings in Johnson’s work history that were pertinent to the lawsuit. It was marked with standard disclaimers about its confidentiality as an attorney-client communication.
In a moment of highly questionable judgment, Duncan (who presumably was part of the “defense team” – or else he wouldn’t have been getting e-mails from Caltrans’ lawyer) – took a photo of the email with his phone and shared it with Johnson. Johnson, in turn, gave it to *his* attorney, John Shepardson, who not only read it and made plans to use it in Johnson’s lawsuit, but also shared it with several expert witnesses. He also sent a letter complaining to Brown about the uncomplimentary things he had said about Johnson, and how much Johnson had suffered emotionally as a result.
Brown wrote back and demanded that Shepardson return or destroy the e-mail, pointing out that it was marked “attorney-client communication” and so forth. Instead, Shepardson argued that, because Duncan had shared with Johnson, the privilege was waived and it was now fair game for him to use in Johnson’s case.
So Caltrans went to court, seeking an order barring both the e-mail and the experts with whom it had been shared from further use in the case. Shepardson filed opposition, contending that Caltrans had waived the privilege, either by delay or by virtue of Duncan sharing the e-mail. He also claimed a right to use the email in connection with Johnson’s emotional distress claims.
The trial court agreed with Caltrans, ordering the email returned or destroyed, and forbidding its use in the case. Shepardson, instead of complying and moving on, dug in his collective heels.
But Caltrans also wasn’t finished. In a rare, aggressive move, Caltrans also had asked the court to disqualify Shepardson’s firm from the case along with the expert witnesses. The dispute landed before the Court of Appeal, which just last March sided decisively with Caltrans. According to the court, the email was privileged, citing the various factors that made it so – including those disclaimers about attorney-client privilege.
What about Duncan’s photo? The court brushed that off. Duncan was a middle-level manager, and therefore not high enough in the Caltrans organization to have authority to waive privilege, which belongs to the agency, not any individual employee.
The real trouble for Johnson came from Shepardson’s conduct. Once Caltrans raised its claim of privilege, he was either supposed to return the email, or seek guidance from the court before doing anything with it. Instead, he passed it around to expert witnesses, let them analyze it, and even planned to use it in the case. The appellate court, citing longstanding State Bar rules, found this a serious-enough breach to disqualify him and his expert witnesses from the case.
So Johnson could still pursue his lawsuit, but would have to bring a new attorney up to speed, who will have to find new expert witnesses. And indeed, privileged communications accidentally get disclosed surprisingly often. They are often swept in with other documents one side gets from the other as part of standard discovery requests, especially now that so many records are either e-mails or other electronic documents. The side that finds a Christmas present (or an Easter Egg – take your pick) typically returns the privileged documents with a note saying, “Whoops! I don’t think you meant to send this to us!”
Here, the insistence that there was a waiver proved far costlier, in both lost time and attorney’s fees. And, thus far, it’s also costing Johnson a good chunk of his legal team.
But I say “thus far,” however, because once again it’s Shepardson who is on the offensive. Since the case was decided last March, he has petitioned the California Supreme Court to review the appellate decision. Because that decision was “published” – i.e., it set precedent – it has gotten more attention from the Supreme Court than it otherwise might.
And earlier this month, the Supreme Court extended the time for it to decide whether to review the appellate decision. Thus, it’s still possible that Johnson will get to keep his legal team. And so, as I must sometimes say: . . . stay tuned.
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