Preview
Electronically FILED by Su rior Court of California, County of Los Angeles on 07/18/2019 11:58 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk
JACOBSON, RUSSELL, SALTZ NASSIM & DE LA TORRE, LLP
MichaelJ. Saltz, Esq. SBN 189751
Jessica Manavi, Esq. SBN 299425
Blake Brown, Esq. SBN 316879
1880 Century Park East, Suite 900
Los Angeles, California 90067
Telephone: (310) 446-9900
Facsimile: (310) 446-9909
Attomeys for Defendants and Cross-Complainants
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, UNLIMITED JURISDICTION
MEYER & DOWNS, LLP a California Case No.: BC710428
limited liability partnership;
10 DEFENDANTS ANDREA JOY COOK AND
on Plaintiff, SCATTERED JOY PRODUCTIONS, INC.’S
gu Vv. NOTICE OF MOTION AND MOTION FOR
12 DISQUALIFICATION OF PLAINTIFF’S
go ANDREA JOY COOK, also known as A J. COUNSEL; MEMORANDUM OF POINTS
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DS 13 Cook and/or Andrea Andersen, an AND AUTHORITIES; DECLARATION OF
wt individual; SCATTERED JOY MICHAEL J. SALTZ, ESQ. IN SUPPORT
Eo a 14 PRODUCTIONS, INC., a California THEREOF; DECLARATION OF ANDREA
88 15 Corporation; and DOES 1 through 50, JOY COOK IN SUPPORT THEREOF.
inclusive,
338 16 Hearing Date: August 19, 2019
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Re 19 Cook and/or Andrea Andersen, an Complaint filed: June 15, 2018
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oS individual; SCATTERED JOY Cross-Complaint filed: August 7, 2018
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PRODUCTIONS, INC., a California
21 Corporation;
22 Cross-Complainant,
Vv.
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24 NEIL MEY ER, an individual; MEY ER &
DOWNS, LLP a California limited liability
25 partnership; and ROES 1 through 50,
26 inclusive
27 Cross-Defendants.
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MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
NOTICE OF MOTION
PLEASE TAKE NOTICE that on August 19, 2019 at 8:30 a.m. or as soon as this matter may
be heard in Department 36 of the above-entitled court located at 111 North Hill Street, Los Angeles,
California 90012, Defendants and Cross-Complainants ANDREA JOY COOK and SCATTERED
JOY PRODUCTIONS, INC. (“Defendants”) will move the Court for an Order Disqualifying
Plaintiffs Counsel for violating their ethical duties under the State Fund Rule as set forth in Rico v.
Mitsubishi Motors Corp. (2007) 42 Cal. 4th. 807. Plaintiff's Counsel disclosed, disseminated, and
used in this litigation inadvertently disclosed confidential attorney-client communications and attomey
work product in direct violation of the State Fund Rule.
10 The motion follows Defendants’ attempts to retrieve the inadvertently produced documents
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gu from Plaintiff's Counsel, all of which have been ignored.
go 12 The motion will be based on the memorandum of points and authorities, the Declarations of
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Eo a 14 the records on file in this action, those matters of which this Court may and must take judicial notice,
88 15 and any further evidence and argument that may be presented at the hearing on this motion.
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23 Attomeys for Defendants
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MOTION
PLEASE TAKE NOTICE that Defendants and Cross-Complainants ANDREA JOY COOK
and SCATTERED JOY PRODUCTIONS, INC. (“Defendants”) hereby move the Court for an Order
Disqualifying Plaintiff's Counsel for violating their ethical duties under the State Fund Rule as set
forth in Rico v. Mitsubishi Motors Corp., (2007) 42 Cal. 4th. 807. Plaintiff's Counsel disclosed,
disseminated, and used in this litigation inadvertently disclosed confidential attorney-client
communications and attorney work product in direct violation of the State Fund Rule.
The motion follows Defendants’ attempts to retrieve the inadvertently produced documents
from Plaintiff's Counsel, all of which have been ignored.
10 The motion is based on the memorandum of points and authorities, the Declarations of Michael
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gu J. Saltz, Esq. and Andrea Joy Cook filed concurrently herewith, the proposed protective order, the
go 12 records on file in this action, those matters of which this Court may and must take judicial notice, and
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88 15 Dated: July 18, 2019
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21 Attomeys for Defendants
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1) y INTRODUCTION...........04 nein
2H RELEVANT FACTS........00004
A THE INADVERTENTLY DISCLOSED DOCUMENTS WERE
PRIVILEGED ATTORNEY -CLIENT COMMUNICATIONG..........044+5
ARGUMENT...
A LEGAL STANDARD ........00
B PLAINTIFF’S COUNSEL IGNORED THE STATE FUND RULE AND
USED THE PRIVILEGED MATERIAL IN THE DEPOSITION OF
DEFENDANT ANDREA JOY COOK AND DISSEMINATED THE
PRIVILEGED MATERIAL TO A COURT REPORTER AND THE
PLAINTIFF . 10
10 PLAINTIFF’S COUNSEL SHOULD BE DISQUALIFIED 11
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12 Are Attomey-Client Communications and A ttorney W ork Product 11
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Waive Privilege 12
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The Only Way This Matter May Proceed In A Fair And Just Manner Is
88 15 If Plaintiff's Counsel Is Disqualified...
338 16 CONCLUSION, 15
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Table of Authorities
Cases
BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240 12
Clark v. Superior Court (2011) 196 Cal.App.4th 37 9, 14
Cooke v. Superior Court (1978) 83 Cal.App.3d 582 9, 13
Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725... 13
DP Pham, LLC v. Cheadle (2016) 246 Cal. App. 4th 653 9, 11, 12, 13
McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083 seven d, 8, 11, 14
Rico v. Mitsubishi Motors Corp., (2007) 42 Cal.4th. 807... sees L, 8, 11, 13
10 State Comp. Ins. Fund v. WPS, Inc. (1990) 70 Cal.App.4th 644..
on
gu State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625 9, 13
go 12 Wells Fargo Bank, NA. v. Superior Court (2000) 22 Cal.4th 201 11
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Statutes
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egnl4 Code Civ. Proc. § 2018.030(a) 11
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MEMORANDUM OF POINTS AND AUTHORITIES
1, INTRODUCTION
It is well-established California law that when an attomey receives material that might be
privileged, he has certain legal and ethical duties. First, he must not continue to read the document
beyond what is required to ascertain its potentially privileged nature. Second, he is to immediately
contact opposing counsel to try to resolve the issue. Third, if the parties cannot resolve the issue, then
they should seek to have the court resolve it. [See Rico v. Mitsubishi Motors Corp., (2007) 42 Cal.4th.
807, 810]. If the attorney who received the document does not follow these rules, but instead uses the
document in the litigation before the issue is resolved, then that attomey faces disqualification if it is
10 determined that the document is, in fact, privileged. [See McDermott Will & Emery LLP v. Superior
an
11 Court (2017) 10 Cal.App.5th 1083, 1093].
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go 12 In this case, counsel for Plaintiff, Daniel Zohar (“Plaintiff's Counsel”), came into possession
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88 15 the time the documents were authored). These documents were clearly privileged and are the classic
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absolute privilege from disclosure and thus disqualification should be automatic. All documents were
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a>-: 18 communications made in the course of an attorney-client relationship. Y et, Plaintiffs Counsel did not
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oS 20 which Defendant’s Counsel has since confirmed was indeed the case in demanding the documents be
21 retumed both in person and in writing. Plaintiff's Counsel did not contact Defendants’ Counsel to try
22 and resolve any privilege issues prior to using the documents in this case. Instead, Plaintiff's Counsel,
23 in violation of their legal and ethical duties, used and disseminated the documents and communications
24 in this litigation. In fact, Plaintiff's Counsel marked a portion of the documents as exhibits in the
25 deposition of Defendant Andrea Joy Cook (“Ms. Cook”) on July 9, 2019, disseminated the documents
26 to Plaintiff and the court reporter, and proceeded to cross-examine Ms. Cook on its contents. Plaintiff's
27 Counsel knew that the documents in their possession were privileged attorney-client communications
28 and attorney work-product as they were expressly stated as privileged in multiple privilege logs
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provided to Plaintiff’s Counsel months earlier and were expressly marked confidential and privileged
in the emails themselves.
Plaintiffs Counsel must be disqualified. That is the only remedy that can restore fairness to
these proceedings. Having received, studied, and used Defendants’ privileged attorney-client
communications and Defendants’ Counsel’s work-product —-work product revealing their impressions,
conclusions, and strategies about Plaintiffs claims— there is simply no way that this case can proceed
with Plaintiffs Counsel without prejudicing Defendants. Absent disqualification, there will continue
to be the inevitable risk that Defendants’ privileged communications with their attorneys and
Defendants’ Counsel’s work product will be used against them at every tum.
10 2. RELEVANT FACTS
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11 On or around August 24, 2018, Plaintiff served Defendant Andrea Joy Cook with Requests for
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DS 13 (“Decl. M. Saltz”) §2, Exhibit “1”]. Defendant Cook timely served responses on or around September
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Eo a 14 28, 2018. [Decl. M. Saltz, 4]. Defendant also concurrently served a Privilege Log identifying specific
88 15 emails being withheld due to them containing attomey-client communications and attorney work
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GOS 16 product. [Decl. M. Saltz, 4, Exhibit “2” ]. On or around January 9, 2019, Defendant’s Counsel served
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an Amended Privilege Log on Plaintiffs Counsel identifying the same emails as attorney-client
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a>-: 18 communications and attorney work product. [Decl. M. Saltz, 15, Exhibit “3”]. On or around February
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oS 20 attorney-client communications and attorney work product. [Decl. M. Saltz, 6, Exhibit “4”]. Over
21 the next coming months, both parties counsel engaged in numerous emails, letters, and discovery
22 conferences regarding Plaintiffs Counsel continuously seeking attorney-client privileged
23 communications. [Decl. M. Saltz, 7]. Plaintiff's Counsel ultimately filed a motion to compel said
24 emails on March 27, 2019, which was denied on April 23, 2019. [Decl. M. Saltz, 9 7; see Plaintiff's
25 Motion to Compel, Defendants’ Opposition to Plaintiff's Motion to Compel, and the Court’s April 23,
26 2019 Minute Order on file with this Court]. In fact, Viet Do, in support of Defendant’s Opposition,
27 filed a declaration stating that he was in fact a licensed attomey and hired by Ms. Cook to provide legal
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and financial services to handle the business affairs, taxes, financial obligations and provide general
legal services and advice. [Decl. M. Saltz, 7, Exhibit “7”].
Pursuant to a stipulated protective order, Defendant’s Counsel was to produce a document
between Defendants’ personal, family, and business affairs attorney, Viet Do, and Cross-Defendant
Neil Meyer. [Decl. M. Saltz, 8]. Said communications between Viet Do and Neil Meyer were scanned
and electronically saved in a larger electronic packet of attorney-client communications between
Defendants, Viet Do, and members of Defense Counsel’s firm, namely William Jacobson and Jason
Russell. [Decl. M. Saltz, § 8]. In an apparent mistake, a clerk for Defense Counsel’s firm combined all
email exchanges, inclusive of the privileged and confidential communications, into one large electronic
10 document and was inadvertently produced on or around July 2, 2019 to Plaintiff's Counsel. [Decl. M.
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A. THE INADVERTENTLY DISCLOSED DOCUMENTS WERE PRIVILEGED
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ATTORNEY -CLIENT COMMUNICATIONS
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. August 28, 2018 Communication Between Viet Do and Defendants
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Plaintiffs Counsel knew or should have known that the email dated August 28, 2018 was an
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attomey-client communication and therefore privileged. The email is between Viet Do and his clients
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Joy Productions, Inc. (“SJP”). [Decl. of Ms. Cook
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5a {4 3]. Plaintiffs Counsel knows this because Ms. Cook testified to this fact in the first part of her
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6° deposition on May 15, 2019. [Decl. M. Saltz 12; Exhibit “6”, Deposition Transcript of Andrea Joy
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Cook]. Plaintiff's Counsel also knows this because of prior discovery responses and privilege logs
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wherein Viet Do is identified as Defendants’ attorney. [Decl. M. Saltz | 7; see Second Amended
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Privilege Log as Exhibit “4”]. Plaintiff also had direct knowledge that Viet Do filed a declaration in
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support of the opposition to Plaintiff's unsuccessful motion to compel. [Decl. M. Saltz, § 7]. Therein,
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Viet Do states under the penalty of perjury that he is an attorney that represents Defendants and that
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the subject emails are privileged attorney-client communications. [Decl. M. Saltz, 7]. Ms. Cook and
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SJP are named defendants in this present matter and are clients of Viet Do. [Decl. of Ms. Cook § 2].
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Ms. Cook is the Chief Executive Officer of SJP. [Decl. of Ms. Cook § 2]. Nathan Andersen is an officer
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of SJP. [Decl. of Ms. Cook § 2; see also Exhibit “6”]. Plaintiff's Counsel is aware and knows of
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Nathan Andersen’s position in SJP and his relation to this lawsuit as he was in attendance at the
deposition of Ms. Cook as an officer and representative of SJP on or about May 15, 2019. [Decl. M.
Saltz 12; Exhibit “6”]. The emails are closed, attorney-client communications as everyone who was
a recipient is a party to this very case. The August 28, 2018 email is privileged because it was made in
the course of an attorney-client relationship and contains the impressions, conclusions, and strategies
of Viet Do about Plaintiff's claims to his clients Ms. Cook and Nathan Andersen. Therefore, Plaintiff's
Counsel knew or should have known the contents of the communications were privileged from the
moment he read who the sender and recipients were. Furthermore, Plaintiff’s Counsel failed to advise
Defendant’s Counsel that they were in possession of the privileged communications.
10 . June 18, 2018 C ommunication Between Viet Do and Defendants
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Eo a 14 signature states “Viet Do, Esq.” [Decl. of Ms. Cook §[5]. The subject of the email is “Re: Permission
88 15 to accept service on your behalf for Meyer matter”. [Decl. of Ms. Cook 45]. Plaintiff's Counsel was
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matter of the June 18, 2019 email was the granting of authority to Defense Counsel in order to accept
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a>-: 18 service of Plaintiffs complaint against Defendants on Defendants’ behalf. [Decl. of Ms. Cook 4 5].
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21 “The information transmitted by this email is intended only for the person or entity to which
itis addressed. This email may contain proprietary, business-confidential and/or privileged
22 material. If you are not the intended recipient of this message, be aware that any use,
23 review, transmission, distribution, reproduction or any action taken in reliance upon this
message is strictly prohibited. If you received this in error, please contact the sender and
24 delete the material from all computers.”
25 Therefore, Plaintiff's Counsel knew or should have known that the contents of the communication
26 were privileged from the moment he read the subject line, the sender and recipients, and the email
27 signature of Viet Do. Furthermore, Plaintiff's Counsel failed to advise Defendants’ Counsel that they
28 were in possession of the privileged communications.
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. June 7, 2018 Communication Between Viet Do and Defendants
Plaintiff's Counsel knew or should have known that the email dated June 7, 2018 was an
attorney-client communication and therefore privileged. The email is between Viet Do and his clients
Ms. Cook and Nathan Andersen on behalf of SJP. [Decl. of Ms. Cook § 6]. Again, Viet Do’s email
signature states “Viet Do, Esq.” and contains the language cited above regarding it being a confidential
and privileged communication. The subject line of the email is “Re: Neil Meyer update”. [Decl. of Ms.
Cook {| 6]. The subject matter of the communication was a legal strategy and attorney work product
notes regarding this present litigation. [Decl. M. Saltz | 8]. This communication is clearly related to
the present litigation between Plaintiffs and Defendants. Plaintiff's Counsel knew or should have
10 known from the face of the document and its content, not the least of which included “Viet Do, Esq.”
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11 and a lengthy privileged communications notice contained therein, that this was an attorney-client
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. November 29, 2017 Communication Between Viet Do, William Jacobson,
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Jason Russell and Defendants
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a>-: 18 Defense Counsel William “Bill” Jacobson. [Decl. of Ms. Cook 4/7]. Copied on the email were Nathan
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oS 20 47]. The subject line of this attorney-client communication was “RE:_Primary_Wave_Entertainment_-
21 w-_A.J._Cook: DEMAND ”. [Decl. of Ms. Cook 7]. Bill Jacobson is a named partner of Jacobson,
22 Russell, Saltz, Nassim & de la Torre, LLP and represents Defendants in this current litigation. [Decl.
23 M. Saltz. 4 10]. Jason Russell is a named partner of Jacobson, Russell, Saltz, Nassim & de la Torre,
24 LLP and also represents Defendants in this current litigation. [Decl. M. Saltz. 10, Exhibit “8”].
25 Plaintiffs Counsel should have been aware that Bill Jacobson and Jason Russell were counsel for
26 Defendants as Jason Russell sent a letter to Neil Meyer stating as much on or about November 9, 2017.
27 [Decl. M. Saltz. {10, Exhibit “8”]. The content of said November 29, 2017 email exchange between
28 client and attorneys discussed a demand made by Plaintiff's Counsel in a somewhat related matter
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entitled Primary Wave Entertainment, LLC v. Andrea Joy Cook and Scattered
J oy Productions, Inc.,
case number 18STCV 02546. [Decl. M. Saltz 10]. Plaintiff's Counsel, until recently, was the attorney
for Primary Wave since the filing of the suit.! [Decl. M. Saltz 10]. Plaintiffs Counsel was blatantly
aware that this email is a privileged communication between attomeys and their clients. Most
importantly, Bill Jacobson’s email contains language stating that this communication is privileged.
Said email reads:
“CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This e-mail transmission,
and any documents, files or previous e-mail messages attached to it, may contain
confidential information that is legally privileged. If you are not the intended recipient, or
person responsible for delivering it to the intended recipient, you are hereby notified that
any disclosure, copying, distribution or use of any of the information contained in or
attached to this message is STRICTLY PROHIBITED. Interception of e-mail is a crime
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under the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and 2701-2709.
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11 If you have received this transmission in error, please immediately notify me by replying
to this e-mail or by telephone at 310.446.9900, Ext. 225, and destroy the original
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88 15 to litigation involving Plaintiff's Counsel and Defendants. Plaintiff's Counsel knew or should have
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21 marked it as “Exhibit 42”, used it to examine Defendant Cook at her deposition, proceeded to attach it
22 to her deposition, the transcript of which has not yet been prepared by the court reporter. [Decl. M.
23 Saltz 13].
24 Il
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1 Daniel Zohar and the Zohar Law Firm recently resigned as counsel for Primary Wave Entertainment
28 in response to a pending Motion to Disqualify Mr. Zohar and his firm based upon a violation of the
duty to maintain client confidences.
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. November 19, 2017 Communication Between Viet Do and Defendants
Plaintiff's Counsel knew or should have known the email dated November 29, 2017 was an
attomey-client communication and therefore privileged. The email is between Viet Do and Defense
Counsel Bill Jacobson. [Decl. of Ms. Cook §8]. Copied on the email were Nathan Andersen on behalf
of Defendant SJP and Defendant Cook. [Decl. of Ms. Cook 48]. The subject line of the email was
“Criminal Minds commission”, which is the subject matter at the very heart of this litigation, and
contains communications regarding Viet Do’s research into improper payments being made to
Plaintiff. [Decl. of Ms. Cook 8; Decl. M. Saltz. 11]. The only persons on the email exchange were
the defendants and their attorneys. The communication was made in the normal course of an attorney-
10 client relationship.
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88 15 . November 6, 2017 Communication Between Viet Do and Defendants
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communication and therefore privileged. The email is between Viet Do and Defendants. [Decl. of Ms.
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a>-: 18 Cook | 9]. The subject line of the email was “Items for the attorney” and discussed the engagement of
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21 attomeys. The communication was made in the normal course of an attorney-client relationship.
22 Furthermore, Plaintiff's Counsel failed to advise Defendants’ Counsel that they were in possession of
23 the privileged communications.
24 Plaintiffs Counsel received the documents, read through them, knowing that the contents were
25 privileged and inadvertently disclosed, and did nothing but lie in wait to use its contents at deposition.
26 At the deposition of Defendant Andrea Joy Cook (“Ms. Cook”), Plaintiff's Counsel proceeded to ask
27 about the material contained therein throughout the deposition and then actually used the two attorney-
28 client communications dated November 29, 2017 and November 19, 2017 as exhibits in orderto claim
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that the deponent had testified inconsistently during her deposition. [Decl. M. Saltz § 13]. Defense
Counsel objected to use of the document and instructed the deponent to cease answering questions.
(Decl. M. Saltz ¥ 13]. Defense Counsel also informed Plaintiff's Counsel that the document was clearly
an attorney-client privileged communication indisputably between the Defendants and their attorneys,
and that no other person, who was not a party to this litigation and who is not an attomey, were listed
as the recipients to the subject email. [Decl. M. Saltz § 13].
3, ARGUMENT
A. LEGAL STANDARD
The California Supreme Court has established procedures and ethical guidelines for an attorney
10 who receives material that appearsto be privileged. A dopting the holding in State Comp. Ins. Fund v.
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gu WPS, Inc. (1990) 70 Cal.A pp.4th 644, the Supreme Court established the State Fund Rule for dealing
go 12 with such situations. [Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th. 807]. Under that rule, the
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88 15 privileged, counsel must immediately notify opposing counsel and try to resolve the situation.”
338 16 [Id. at 810 (emphasis added)]. Once receiving counsel has fulfilled that duty, “[t]he parties may then
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proceed to resolve the situation by agreement or may resort to the court for guidance with the
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21 receiving attorney fails to abide by the State Fund Rule. If such attomey is merely exposed to the
22 privileged material but doe nothing further, than a sanction such as disqualification is not warranted.
23 [Id. at 819]. However, if the receiving attorney disseminates and uses the material, then disqualification
24 of that attorney is appropriate. [Id.]. It does not matter how the receiving party received the material or
25 whether the receiving party believes the privilege has been waived for some reason. [See McD ermott
26 Will & Emery LLP v. Superior Court (2017) 10 Cal. App. 5th 1083, 1092]. “[R]egardless of how the
27 attorney obtained the documents, whenever a reasonable competent attomey would conclude the
28 documents obviously or clearly appear to be privileged and it is reasonable apparent they were
Case No.: BC710428
File No.: 2365-002 8
MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
inadvertently disclosed, the State Fund rule” applies. [Id]. “The receiving attomey assumes the risk of
disqualification when the 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.” [Id. at 1093].
The attomey-client privilege protects the transmission of information regardless of the content
or whether the information is discoverable from other source. [DP Pham, LLC v. Cheadle (2016) 246
Cal. App. 4th 653, 659-664]. It attaches to a confidential communication between the attorney and
client and bars discovery of the entire communication, including unprivileged material. [Id.]. Neither
the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any
10 differentiation between “factual” and “legal” information. [Costco Wholesale Corp. v. Superior Court
on
gu (2009) 47 Cal.4th 725, 734]. A court’s determination of whether the privilege applies “does not involve
go 12 the nature of the communications or the effect of disclosure but rather the existence of the relationship
& 9g
DS 13 at the time the communication was made, the intent of the client and whether the communication
wt
Eo a 14 emanates from the client.” [DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 666 (intemal
88 15 citation omitted)]. “Consistent with these principles, California courts have recognized ‘we must
338 16 approach th[e] issue [of whether documents are protected by the attorney-client privilege] without
GOS
Hee
Rc
gulti7
Xs
inspection of the documents themselves.’ (Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 588;
oS
aa
a>-: 18 see State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal App.4th 625, [‘We will not take
5a
Be
Re 19 into consideration the actual privileged information in aid of our determination’].” [DP Pham LLC v.
6°
88
oS 20 Cheadle (2016) 246 Cal.A pp.4th 653, 666.].
21 Disqualification is the appropriate remedy to protect the integrity of future proceedings in a
22 case and to minimize future prejudice to the opposing party. [See Clark v. Superior Court (2011) 196
23 Cal.App.4th 37, 55]. Otherwise, as the case moves forward, there would be the inevitable question of
24 the attorney’s source of knowledge on any issue that touches upon the subject matters contained in the
25 privileged documents. [Id]. “[D]isqualification is proper as a prophylactic measure to prevent future
26 prejudice to the opposing party from information the attorney should not have possessed.” [Id.].
27
28
Case No.: BC710428
File No.: 2365-002 9
MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
B. PLAINTIFF’S COUNSEL IGNORED THE STATE FUNDRULE AND USED
THE PRIVILEGED MATERIAL IN THE DEPOSITION OF DEFENDANT
ANDREA JOY COOK AND DISSEMINATED THE PRIVILEGED
MATERIAL TO A COURT REPORTER AND THE PLAINTIFF
There is no question that the nature of the documents inadvertently produced triggered the State
Fund Rule. The documents are attorney-client communications between the Defendants and their
attommeys regarding the present matter. Furthermore, the documents are labeled confidential and
privileged. The communications are discussions between attorney and client regarding Defendants’
potential case and claims regarding this very matter, such a discussion plainly includes Defense
Counsel’s impressions, conclusions, and opinions regarding the potential lawsuit by Plaintiff.
The obvious content of the documents should have raised an immediate red flag to Plaintiff's
10
an
11 Counsel that the documents had been inadvertently produced. Any reasonably competent attorney
Es
go 12
would have immediately realized the potential privilege issues such a document raised, and Plaintiff's
& 9g
DS 13 Counsel plainly did recognize the issues the documents raised; they made use of such documents not
wt less than a week later in the deposition of Defendant Cook, specifically relying on the contents and
Eo a 14
work product notes of Defense Counsel, in the emails dated November 29, 2017 and November 19,
88 15
BS
16 2017 between attomeys for Defendants and Defendants and then attaching said emails as “Exhibit 41”
GOS
Hee
Rc and “Exhibit 42” to said deposition.
gulti7
Xs
oS
aa As soon as Plaintiff's Counsel glanced at the header of the first page of the email exchange,
a>-: 18
5a
Be they were under legal and ethical duties set forth in the State Fund Rule. Y et, they did not refrain from
Re 19
6°
88
oS reading the document any more closely than necessary to realize that privilege issues were implicated.
20
21 Instead, they studied them closely and immediately made use of the documents. When the inadvertent
production of the communications were disclosed by Plaintiff's Counsel at the deposition of Ms. Cook,
22
Plaintiffs Counsel was informed of the inadvertent disclosure and demanded the documents be
23
retumed. [Decl. M. Saltz § 13]. Thereafter, Defense Counsel, holder of the work product privilege,
24
demanded that the documents be returned and scrubbed from Plaintiffs Counsel’s files while
25
providing a detailed legal basis as to the privileged nature of the documents and the firm’s right to
26
demand its return. [Decl. M. Saltz 14].
27
It is difficult to imagine a more egregious violation of the State Fund Rule. Upon receipt of the
28
communications, Plaintiff's Counsel began to use and formulate a plan to depose Defendant Cook with
Case No.: BC710428
File No.: 2365-002 10
MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
no attempt to notify opposing counsel in the case about the privilege issues. Plaintiff's Counsel then
used said privileged material and disseminated the material to Plaintiff and to the court reporter.
C. PLAINTIFF’S COUNSEL SHOULD BE DISQUALIFIED
As discussed, if counsel decides to use material that it received that may be privilege without
complying with the State Fund Rule, then the only real question on a motion for disqualification of the
counsel is whether the material is in fact privileged. [See McDermott Will & Emery LLP v. Superior
Court (2017) 10 Cal.App.5th at 1093]. Here, there can be no question that the communications
inadvertently produced to Plaintiff's Counsel are privileged and subject to an absolute privilege from
disclosure.
1. The Email Communications Between Defendants And Their Counsel Are
10 Attorney-C lient Communications and Attorney W ork Product
an
11 To establish that a privilege exists, the proponent of the privilege only must make a prima facie
Es
go 12 showing of privilege. [DP Pham, LLC v. Cheadle (2016) 246 Cal App.4th 653, 659-60]. The burden
& 9g
DS 13 then shifts to the opponent to establish a waiver or an exception or that the privilege does not otherwise
wt
Eo a 14 apply. [Id.]. Attached to the supporting Declarations are the redacted, inadvertently produced
88 15 communications between Defendants Counsel and Defendants. As can be clearly ascertained from the
BS
GOS 16 recipients of the communications, the subject lines, bold lettering above and below on the documents
Hee
Rc
gulti7
Xs stating “CONFIDENTIAL”, and from the emails themselves which contain statements emphasizing to
oS
aa
a>-: 18 any reader that the communications were privileged and confidential, these documents are attorney-
5a
Be
Re 19 client privileged communications containing attorney work product and notes. Any competent lawyer
6°
88
oS 20 would not need to read any further to be put on notice the privileged nature of the documents.
21 The work product privilege applies to a “writing that reflects an attorney’s impressions,
22 conclusions, opinions, or legal research or theories.” [Code Civ. Proc. § 2018.030(a)]. Such a writing
23 “is not discoverable under any circumstances.” [Id.]. It is an absolute privilege from disclosure. [Rico,
24 42 Cal.4th at 814 (“the codified work product doctrine absolutely protects from discovery writing that
25 contain an attorney’s impressions, conclusions, opinions, or legal theories or research.”)] The attorney
26 is the holder of this absolute privilege. [See Wells Fargo Bank, NA. v. Superior Court (2000) 22 Cal.4th
27 201, 215. “The work product rule in California creates for the attorney a qualified privilege against
28 discovery of general work product and an absolute privilege against disclosure of writings
Case No.: BC710428
File No.: 2365-002 11
MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL
containing the attorney's impressions, conclusions, opinions or legal theories.” [BP Alaska
Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250 (emphasis added)].
The “only exception to the absolute work product protection ... is where there has been a waiver
of the protection by the attorney’s voluntary disclosure or consent to disclosure of the writing to a
person other than the client who has no interest in maintaining the confidentiality of the contents of the
writing.” [Id. at 1261]. A writing protected by the absolute work product does not lose its privileged
status even if it is not in the attorney’s p
Preview
Electronically FILED by Su rior Court of California, County of Los Angeles on 07/18/2019 11:58 AM Sherri R. Carter, Executive Officer/Clerk of Court, by M. Soto,Deputy Clerk JACOBSON, RUSSELL, SALTZ NASSIM & DE LA TORRE, LLP MichaelJ. Saltz, Esq. SBN 189751 Jessica Manavi, Esq. SBN 299425 Blake Brown, Esq. SBN 316879 1880 Century Park East, Suite 900 Los Angeles, California 90067 Telephone: (310) 446-9900 Facsimile: (310) 446-9909 Attomeys for Defendants and Cross-Complainants SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES, UNLIMITED JURISDICTION MEYER & DOWNS, LLP a California Case No.: BC710428 limited liability partnership; 10 DEFENDANTS ANDREA JOY COOK AND on Plaintiff, SCATTERED JOY PRODUCTIONS, INC.’S gu Vv. NOTICE OF MOTION AND MOTION FOR 12 DISQUALIFICATION OF PLAINTIFF’S go ANDREA JOY COOK, also known as A J. COUNSEL; MEMORANDUM OF POINTS & 9g DS 13 Cook and/or Andrea Andersen, an AND AUTHORITIES; DECLARATION OF wt individual; SCATTERED JOY MICHAEL J. SALTZ, ESQ. IN SUPPORT Eo a 14 PRODUCTIONS, INC., a California THEREOF; DECLARATION OF ANDREA 88 15 Corporation; and DOES 1 through 50, JOY COOK IN SUPPORT THEREOF. inclusive, 338 16 Hearing Date: August 19, 2019 GOS Hee Rc Defendants. Hearing Time: 8:30 am gulti7 Xs oS 2a a>-: 18 RES NO: 669593810362 5a Be ANDREA JOY COOK, also known as A J. Re 19 Cook and/or Andrea Andersen, an Complaint filed: June 15, 2018 6° 88 oS individual; SCATTERED JOY Cross-Complaint filed: August 7, 2018 20 PRODUCTIONS, INC., a California 21 Corporation; 22 Cross-Complainant, Vv. 23 24 NEIL MEY ER, an individual; MEY ER & DOWNS, LLP a California limited liability 25 partnership; and ROES 1 through 50, 26 inclusive 27 Cross-Defendants. 28 Case No.: BC710428 File No.: 2365-002 1 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL NOTICE OF MOTION PLEASE TAKE NOTICE that on August 19, 2019 at 8:30 a.m. or as soon as this matter may be heard in Department 36 of the above-entitled court located at 111 North Hill Street, Los Angeles, California 90012, Defendants and Cross-Complainants ANDREA JOY COOK and SCATTERED JOY PRODUCTIONS, INC. (“Defendants”) will move the Court for an Order Disqualifying Plaintiffs Counsel for violating their ethical duties under the State Fund Rule as set forth in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal. 4th. 807. Plaintiff's Counsel disclosed, disseminated, and used in this litigation inadvertently disclosed confidential attorney-client communications and attomey work product in direct violation of the State Fund Rule. 10 The motion follows Defendants’ attempts to retrieve the inadvertently produced documents on gu from Plaintiff's Counsel, all of which have been ignored. go 12 The motion will be based on the memorandum of points and authorities, the Declarations of & 9g DS 13 MichaelJ. Saltz, Esq. and Andrea Joy Cook filed concurrently herewith, the proposed protective order, wt Eo a 14 the records on file in this action, those matters of which this Court may and must take judicial notice, 88 15 and any further evidence and argument that may be presented at the hearing on this motion. 338 16 GOS Hee Rc gulti7 Xs Dated: July 18, 2019 oS aa a>-: 18 5a Be Re 19 Jacobson, Russell, Saltz, Nassim & de la Torre, LLP 6° 88 oS 20 21 47S 22 MichaelJ. Saltz, Esq. 23 Attomeys for Defendants 24 25 26 27 28 Case No.: BC710428 File No.: 2365-002 2 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL MOTION PLEASE TAKE NOTICE that Defendants and Cross-Complainants ANDREA JOY COOK and SCATTERED JOY PRODUCTIONS, INC. (“Defendants”) hereby move the Court for an Order Disqualifying Plaintiff's Counsel for violating their ethical duties under the State Fund Rule as set forth in Rico v. Mitsubishi Motors Corp., (2007) 42 Cal. 4th. 807. Plaintiff's Counsel disclosed, disseminated, and used in this litigation inadvertently disclosed confidential attorney-client communications and attorney work product in direct violation of the State Fund Rule. The motion follows Defendants’ attempts to retrieve the inadvertently produced documents from Plaintiff's Counsel, all of which have been ignored. 10 The motion is based on the memorandum of points and authorities, the Declarations of Michael on gu J. Saltz, Esq. and Andrea Joy Cook filed concurrently herewith, the proposed protective order, the go 12 records on file in this action, those matters of which this Court may and must take judicial notice, and & 9g DS 13 any further evidence and argument that may be presented at the hearing on this motion. wt Eo a 14 88 15 Dated: July 18, 2019 338 16 GOS Hee Rc gulti7 Xs Jacobson, Russell, Saltz, Nassim & de la Torre, LLP oS aa a>-: 18 5a Be Re 19 6° 88 47S oS 20 MichaelJ. Saltz, Esq. 21 Attomeys for Defendants 22 23 24 25 26 27 28 Case No.: BC710428 File No.: 2365-002 3 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL 1) y INTRODUCTION...........04 nein 2H RELEVANT FACTS........00004 A THE INADVERTENTLY DISCLOSED DOCUMENTS WERE PRIVILEGED ATTORNEY -CLIENT COMMUNICATIONG..........044+5 ARGUMENT... A LEGAL STANDARD ........00 B PLAINTIFF’S COUNSEL IGNORED THE STATE FUND RULE AND USED THE PRIVILEGED MATERIAL IN THE DEPOSITION OF DEFENDANT ANDREA JOY COOK AND DISSEMINATED THE PRIVILEGED MATERIAL TO A COURT REPORTER AND THE PLAINTIFF . 10 10 PLAINTIFF’S COUNSEL SHOULD BE DISQUALIFIED 11 on gu 1 The Email Communications Between Defendants And Their Counsel 12 Are Attomey-Client Communications and A ttorney W ork Product 11 go & 9g DS 13 The Contents Of The Email Communications Cannot Be Used To Waive Privilege 12 wt Eo a 14 The Only Way This Matter May Proceed In A Fair And Just Manner Is 88 15 If Plaintiff's Counsel Is Disqualified... 338 16 CONCLUSION, 15 GOS Hee Rc gulti7 Xs oS aa a>-: 18 5a Be Re 19 6° 88 oS 20 21 22 23 24 25 26 27 28 Case No.: BC710428 File No.: 2365-002 i MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL Table of Authorities Cases BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240 12 Clark v. Superior Court (2011) 196 Cal.App.4th 37 9, 14 Cooke v. Superior Court (1978) 83 Cal.App.3d 582 9, 13 Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725... 13 DP Pham, LLC v. Cheadle (2016) 246 Cal. App. 4th 653 9, 11, 12, 13 McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083 seven d, 8, 11, 14 Rico v. Mitsubishi Motors Corp., (2007) 42 Cal.4th. 807... sees L, 8, 11, 13 10 State Comp. Ins. Fund v. WPS, Inc. (1990) 70 Cal.App.4th 644.. on gu State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal.App.4th 625 9, 13 go 12 Wells Fargo Bank, NA. v. Superior Court (2000) 22 Cal.4th 201 11 & 9g DS 13 Statutes wt egnl4 Code Civ. Proc. § 2018.030(a) 11 88 15 BS GOS 16 Hee Rc gulti7 Xs oS aa a>-: 18 5a Be Re 19 6° 88 oS 20 21 22 23 24 25 26 27 28 Case No.: BC710428 File No.: 2365-002 ii MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL MEMORANDUM OF POINTS AND AUTHORITIES 1, INTRODUCTION It is well-established California law that when an attomey receives material that might be privileged, he has certain legal and ethical duties. First, he must not continue to read the document beyond what is required to ascertain its potentially privileged nature. Second, he is to immediately contact opposing counsel to try to resolve the issue. Third, if the parties cannot resolve the issue, then they should seek to have the court resolve it. [See Rico v. Mitsubishi Motors Corp., (2007) 42 Cal.4th. 807, 810]. If the attorney who received the document does not follow these rules, but instead uses the document in the litigation before the issue is resolved, then that attomey faces disqualification if it is 10 determined that the document is, in fact, privileged. [See McDermott Will & Emery LLP v. Superior an 11 Court (2017) 10 Cal.App.5th 1083, 1093]. Es go 12 In this case, counsel for Plaintiff, Daniel Zohar (“Plaintiff's Counsel”), came into possession & 9g DS 13 of documents that contain Defendants’ Counsel’s attorney-client privileged communications, work- wt Eo a 14 product, impressions, conclusions, strategies, and opinions about Defendants’ case (at least those at 88 15 the time the documents were authored). These documents were clearly privileged and are the classic BS GOS 16 example of the type of attomey-client communications and attorney work-product that enjoys an Hee Rc gulti7 Xs absolute privilege from disclosure and thus disqualification should be automatic. All documents were oS aa a>-: 18 communications made in the course of an attorney-client relationship. Y et, Plaintiffs Counsel did not 5a Be Re 19 contact the attorney who produced the documents to see if the documents were produced inadvertently, 6° 88 oS 20 which Defendant’s Counsel has since confirmed was indeed the case in demanding the documents be 21 retumed both in person and in writing. Plaintiff's Counsel did not contact Defendants’ Counsel to try 22 and resolve any privilege issues prior to using the documents in this case. Instead, Plaintiff's Counsel, 23 in violation of their legal and ethical duties, used and disseminated the documents and communications 24 in this litigation. In fact, Plaintiff's Counsel marked a portion of the documents as exhibits in the 25 deposition of Defendant Andrea Joy Cook (“Ms. Cook”) on July 9, 2019, disseminated the documents 26 to Plaintiff and the court reporter, and proceeded to cross-examine Ms. Cook on its contents. Plaintiff's 27 Counsel knew that the documents in their possession were privileged attorney-client communications 28 and attorney work-product as they were expressly stated as privileged in multiple privilege logs Case No.: BC710428 File No.: 2365-002 1 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL provided to Plaintiff’s Counsel months earlier and were expressly marked confidential and privileged in the emails themselves. Plaintiffs Counsel must be disqualified. That is the only remedy that can restore fairness to these proceedings. Having received, studied, and used Defendants’ privileged attorney-client communications and Defendants’ Counsel’s work-product —-work product revealing their impressions, conclusions, and strategies about Plaintiffs claims— there is simply no way that this case can proceed with Plaintiffs Counsel without prejudicing Defendants. Absent disqualification, there will continue to be the inevitable risk that Defendants’ privileged communications with their attorneys and Defendants’ Counsel’s work product will be used against them at every tum. 10 2. RELEVANT FACTS an 11 On or around August 24, 2018, Plaintiff served Defendant Andrea Joy Cook with Requests for Es go 12 Production of Documents, Set One, containing eighteen requests. [Declaration of MichaelJ. Saltz, Esq. & 9g DS 13 (“Decl. M. Saltz”) §2, Exhibit “1”]. Defendant Cook timely served responses on or around September wt Eo a 14 28, 2018. [Decl. M. Saltz, 4]. Defendant also concurrently served a Privilege Log identifying specific 88 15 emails being withheld due to them containing attomey-client communications and attorney work BS GOS 16 product. [Decl. M. Saltz, 4, Exhibit “2” ]. On or around January 9, 2019, Defendant’s Counsel served Hee Rc gulti7 Xs an Amended Privilege Log on Plaintiffs Counsel identifying the same emails as attorney-client oS aa a>-: 18 communications and attorney work product. [Decl. M. Saltz, 15, Exhibit “3”]. On or around February 5a Be Re 19 7, 2019, Defense Counsel served a Second Amended Privilege Log identifying the same emails as 6° 88 oS 20 attorney-client communications and attorney work product. [Decl. M. Saltz, 6, Exhibit “4”]. Over 21 the next coming months, both parties counsel engaged in numerous emails, letters, and discovery 22 conferences regarding Plaintiffs Counsel continuously seeking attorney-client privileged 23 communications. [Decl. M. Saltz, 7]. Plaintiff's Counsel ultimately filed a motion to compel said 24 emails on March 27, 2019, which was denied on April 23, 2019. [Decl. M. Saltz, 9 7; see Plaintiff's 25 Motion to Compel, Defendants’ Opposition to Plaintiff's Motion to Compel, and the Court’s April 23, 26 2019 Minute Order on file with this Court]. In fact, Viet Do, in support of Defendant’s Opposition, 27 filed a declaration stating that he was in fact a licensed attomey and hired by Ms. Cook to provide legal 28 Case No.: BC710428 File No.: 2365-002 2 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL and financial services to handle the business affairs, taxes, financial obligations and provide general legal services and advice. [Decl. M. Saltz, 7, Exhibit “7”]. Pursuant to a stipulated protective order, Defendant’s Counsel was to produce a document between Defendants’ personal, family, and business affairs attorney, Viet Do, and Cross-Defendant Neil Meyer. [Decl. M. Saltz, 8]. Said communications between Viet Do and Neil Meyer were scanned and electronically saved in a larger electronic packet of attorney-client communications between Defendants, Viet Do, and members of Defense Counsel’s firm, namely William Jacobson and Jason Russell. [Decl. M. Saltz, § 8]. In an apparent mistake, a clerk for Defense Counsel’s firm combined all email exchanges, inclusive of the privileged and confidential communications, into one large electronic 10 document and was inadvertently produced on or around July 2, 2019 to Plaintiff's Counsel. [Decl. M. on gu Saltz, 8, Exhibit “5” (redacted)]. A. THE INADVERTENTLY DISCLOSED DOCUMENTS WERE PRIVILEGED go 12 ATTORNEY -CLIENT COMMUNICATIONS & 9g DS 13 wt . August 28, 2018 Communication Between Viet Do and Defendants Eo a 14 Plaintiffs Counsel knew or should have known that the email dated August 28, 2018 was an 88 15 attomey-client communication and therefore privileged. The email is between Viet Do and his clients 338 16 GOS Hee Rc Ms. Cook and Nathan Andersen. Viet Do is the personal, family and business affairs attorney for Ms. gulti7 Xs oS aa Cook and the business affairs attomey for Scattered Joy Productions, Inc. (“SJP”). [Decl. of Ms. Cook a>-: 18 5a {4 3]. Plaintiffs Counsel knows this because Ms. Cook testified to this fact in the first part of her Be Re 19 6° deposition on May 15, 2019. [Decl. M. Saltz 12; Exhibit “6”, Deposition Transcript of Andrea Joy 88 oS 20 Cook]. Plaintiff's Counsel also knows this because of prior discovery responses and privilege logs 21 wherein Viet Do is identified as Defendants’ attorney. [Decl. M. Saltz | 7; see Second Amended 22 Privilege Log as Exhibit “4”]. Plaintiff also had direct knowledge that Viet Do filed a declaration in 23 support of the opposition to Plaintiff's unsuccessful motion to compel. [Decl. M. Saltz, § 7]. Therein, 24 Viet Do states under the penalty of perjury that he is an attorney that represents Defendants and that 25 the subject emails are privileged attorney-client communications. [Decl. M. Saltz, 7]. Ms. Cook and 26 SJP are named defendants in this present matter and are clients of Viet Do. [Decl. of Ms. Cook § 2]. 27 Ms. Cook is the Chief Executive Officer of SJP. [Decl. of Ms. Cook § 2]. Nathan Andersen is an officer 28 of SJP. [Decl. of Ms. Cook § 2; see also Exhibit “6”]. Plaintiff's Counsel is aware and knows of Case No.: BC710428 File No.: 2365-002 3 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL Nathan Andersen’s position in SJP and his relation to this lawsuit as he was in attendance at the deposition of Ms. Cook as an officer and representative of SJP on or about May 15, 2019. [Decl. M. Saltz 12; Exhibit “6”]. The emails are closed, attorney-client communications as everyone who was a recipient is a party to this very case. The August 28, 2018 email is privileged because it was made in the course of an attorney-client relationship and contains the impressions, conclusions, and strategies of Viet Do about Plaintiff's claims to his clients Ms. Cook and Nathan Andersen. Therefore, Plaintiff's Counsel knew or should have known the contents of the communications were privileged from the moment he read who the sender and recipients were. Furthermore, Plaintiff’s Counsel failed to advise Defendant’s Counsel that they were in possession of the privileged communications. 10 . June 18, 2018 C ommunication Between Viet Do and Defendants an 11 Plaintiff's Counsel knew or should have known that the email dated June 18, 2018 was an Es go 12 attomey-client communication and therefore privileged. The email is again between Viet Do and his & 9g DS 13 clients Ms. Cook and Nathan Andersen on behalf of SJP. [Decl. of Ms. Cook 5]. Viet Do’s email wt Eo a 14 signature states “Viet Do, Esq.” [Decl. of Ms. Cook §[5]. The subject of the email is “Re: Permission 88 15 to accept service on your behalf for Meyer matter”. [Decl. of Ms. Cook 45]. Plaintiff's Counsel was BS GOS 16 blatantly aware that this email related to this present case between Plaintiff and Defendants. The subject Hee Rc gulti7 Xs matter of the June 18, 2019 email was the granting of authority to Defense Counsel in order to accept oS aa a>-: 18 service of Plaintiffs complaint against Defendants on Defendants’ behalf. [Decl. of Ms. Cook 4 5]. 5a Be Re 19 Most importantly, Viet Do’s email contains language stating that this communication is privileged. 6° 88 oS 20 Said email reads: 21 “The information transmitted by this email is intended only for the person or entity to which itis addressed. This email may contain proprietary, business-confidential and/or privileged 22 material. If you are not the intended recipient of this message, be aware that any use, 23 review, transmission, distribution, reproduction or any action taken in reliance upon this message is strictly prohibited. If you received this in error, please contact the sender and 24 delete the material from all computers.” 25 Therefore, Plaintiff's Counsel knew or should have known that the contents of the communication 26 were privileged from the moment he read the subject line, the sender and recipients, and the email 27 signature of Viet Do. Furthermore, Plaintiff's Counsel failed to advise Defendants’ Counsel that they 28 were in possession of the privileged communications. Case No.: BC710428 File No.: 2365-002 4 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL . June 7, 2018 Communication Between Viet Do and Defendants Plaintiff's Counsel knew or should have known that the email dated June 7, 2018 was an attorney-client communication and therefore privileged. The email is between Viet Do and his clients Ms. Cook and Nathan Andersen on behalf of SJP. [Decl. of Ms. Cook § 6]. Again, Viet Do’s email signature states “Viet Do, Esq.” and contains the language cited above regarding it being a confidential and privileged communication. The subject line of the email is “Re: Neil Meyer update”. [Decl. of Ms. Cook {| 6]. The subject matter of the communication was a legal strategy and attorney work product notes regarding this present litigation. [Decl. M. Saltz | 8]. This communication is clearly related to the present litigation between Plaintiffs and Defendants. Plaintiff's Counsel knew or should have 10 known from the face of the document and its content, not the least of which included “Viet Do, Esq.” an 11 and a lengthy privileged communications notice contained therein, that this was an attorney-client Es go 12 communication and contained privileged and confidential information. Furthermore, Plaintiff's & 9g DS 13 Counsel failed to advise Defendants’ Counsel that they were in possession of the privileged wt Eo a 14 communications. . November 29, 2017 Communication Between Viet Do, William Jacobson, 88 15 Jason Russell and Defendants BS GOS 16 Hee Plaintiff's Counsel knew the email dated November 29, 2017 was an attorney-client Rc gulti7 Xs communication and therefore privileged. The email is between Viet Do, Defendant Cook and her oS aa a>-: 18 Defense Counsel William “Bill” Jacobson. [Decl. of Ms. Cook 4/7]. Copied on the email were Nathan 5a Be Re 19 Andersen on behalf of SJP and Jason Russell, another member of Defense Counsel. [Decl. of Ms. Cook 6° 88 oS 20 47]. The subject line of this attorney-client communication was “RE:_Primary_Wave_Entertainment_- 21 w-_A.J._Cook: DEMAND ”. [Decl. of Ms. Cook 7]. Bill Jacobson is a named partner of Jacobson, 22 Russell, Saltz, Nassim & de la Torre, LLP and represents Defendants in this current litigation. [Decl. 23 M. Saltz. 4 10]. Jason Russell is a named partner of Jacobson, Russell, Saltz, Nassim & de la Torre, 24 LLP and also represents Defendants in this current litigation. [Decl. M. Saltz. 10, Exhibit “8”]. 25 Plaintiffs Counsel should have been aware that Bill Jacobson and Jason Russell were counsel for 26 Defendants as Jason Russell sent a letter to Neil Meyer stating as much on or about November 9, 2017. 27 [Decl. M. Saltz. {10, Exhibit “8”]. The content of said November 29, 2017 email exchange between 28 client and attorneys discussed a demand made by Plaintiff's Counsel in a somewhat related matter Case No.: BC710428 File No.: 2365-002 5 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL entitled Primary Wave Entertainment, LLC v. Andrea Joy Cook and Scattered J oy Productions, Inc., case number 18STCV 02546. [Decl. M. Saltz 10]. Plaintiff's Counsel, until recently, was the attorney for Primary Wave since the filing of the suit.! [Decl. M. Saltz 10]. Plaintiffs Counsel was blatantly aware that this email is a privileged communication between attomeys and their clients. Most importantly, Bill Jacobson’s email contains language stating that this communication is privileged. Said email reads: “CONFIDENTIAL AND PRIVILEGED COMMUNICATION: This e-mail transmission, and any documents, files or previous e-mail messages attached to it, may contain confidential information that is legally privileged. If you are not the intended recipient, or person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this message is STRICTLY PROHIBITED. Interception of e-mail is a crime 10 under the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and 2701-2709. an 11 If you have received this transmission in error, please immediately notify me by replying to this e-mail or by telephone at 310.446.9900, Ext. 225, and destroy the original Es go 12 transmission and its attachments without reading them or saving them to disk.” & 9g DS 13 The only persons on the email exchange were the defendants and their attorneys. The communication wt Eo a 14 was made in the normal course of an attorney-client relationship. This communication is clearly related 88 15 to litigation involving Plaintiff's Counsel and Defendants. Plaintiff's Counsel knew or should have BS GOS 16 known from the face of the document and its content and attachments listed therein, that this was an Hee Rc gulti7 Xs attomey-client communication and contained privileged and confidential information. Furthermore, oS aa a>-: 18 Plaintiff's Counsel failed to advise Defendants’ Counsel that they were in possession of the privileged 5a Be Re 19 communications. 6° 88 oS 20 What is more, Plaintiff's Counsel disseminated this email to the court reporter and Plaintiff, 21 marked it as “Exhibit 42”, used it to examine Defendant Cook at her deposition, proceeded to attach it 22 to her deposition, the transcript of which has not yet been prepared by the court reporter. [Decl. M. 23 Saltz 13]. 24 Il 25 Il 26 27 1 Daniel Zohar and the Zohar Law Firm recently resigned as counsel for Primary Wave Entertainment 28 in response to a pending Motion to Disqualify Mr. Zohar and his firm based upon a violation of the duty to maintain client confidences. Case No.: BC710428 File No.: 2365-002 6 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL . November 19, 2017 Communication Between Viet Do and Defendants Plaintiff's Counsel knew or should have known the email dated November 29, 2017 was an attomey-client communication and therefore privileged. The email is between Viet Do and Defense Counsel Bill Jacobson. [Decl. of Ms. Cook §8]. Copied on the email were Nathan Andersen on behalf of Defendant SJP and Defendant Cook. [Decl. of Ms. Cook 48]. The subject line of the email was “Criminal Minds commission”, which is the subject matter at the very heart of this litigation, and contains communications regarding Viet Do’s research into improper payments being made to Plaintiff. [Decl. of Ms. Cook 8; Decl. M. Saltz. 11]. The only persons on the email exchange were the defendants and their attorneys. The communication was made in the normal course of an attorney- 10 client relationship. an 11 What is more, Plaintiff's Counsel disseminated this email to the court reporter and Plaintiff, Es go 12 marked it as “Exhibit 41”, used it to examine Defendant Cook at her deposition, proceeded to attach it & 9g DS 13 to her deposition, the transcript of which has not yet been prepared by the court reporter. [Decl. M. wt Eo a 14 Saltz 13]. 88 15 . November 6, 2017 Communication Between Viet Do and Defendants BS GOS 16 Plaintiff's Counsel knew the email dated November 6, 2017 was an attorney-client Hee Rc gulti7 Xs communication and therefore privileged. The email is between Viet Do and Defendants. [Decl. of Ms. oS aa a>-: 18 Cook | 9]. The subject line of the email was “Items for the attorney” and discussed the engagement of 5a Be Re 19 Jacobson, Russell, Saltz, Nassim & dela Torre, LLP to represent the Defendants in this present dispute. 6° 88 oS 20 [Decl. of Ms. Cook {] 9]. The only persons on the email exchange were the defendants and their 21 attomeys. The communication was made in the normal course of an attorney-client relationship. 22 Furthermore, Plaintiff's Counsel failed to advise Defendants’ Counsel that they were in possession of 23 the privileged communications. 24 Plaintiffs Counsel received the documents, read through them, knowing that the contents were 25 privileged and inadvertently disclosed, and did nothing but lie in wait to use its contents at deposition. 26 At the deposition of Defendant Andrea Joy Cook (“Ms. Cook”), Plaintiff's Counsel proceeded to ask 27 about the material contained therein throughout the deposition and then actually used the two attorney- 28 client communications dated November 29, 2017 and November 19, 2017 as exhibits in orderto claim Case No.: BC710428 File No.: 2365-002 7 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL that the deponent had testified inconsistently during her deposition. [Decl. M. Saltz § 13]. Defense Counsel objected to use of the document and instructed the deponent to cease answering questions. (Decl. M. Saltz ¥ 13]. Defense Counsel also informed Plaintiff's Counsel that the document was clearly an attorney-client privileged communication indisputably between the Defendants and their attorneys, and that no other person, who was not a party to this litigation and who is not an attomey, were listed as the recipients to the subject email. [Decl. M. Saltz § 13]. 3, ARGUMENT A. LEGAL STANDARD The California Supreme Court has established procedures and ethical guidelines for an attorney 10 who receives material that appearsto be privileged. A dopting the holding in State Comp. Ins. Fund v. on gu WPS, Inc. (1990) 70 Cal.A pp.4th 644, the Supreme Court established the State Fund Rule for dealing go 12 with such situations. [Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th. 807]. Under that rule, the & 9g DS 13 attorney who receives such a document “may not read a document any more closely that is wt Eo a 14 necessary to ascertain that it is privileged. Once it becomes apparent that the content is 88 15 privileged, counsel must immediately notify opposing counsel and try to resolve the situation.” 338 16 [Id. at 810 (emphasis added)]. Once receiving counsel has fulfilled that duty, “[t]he parties may then GOS Hee Rc gulti7 Xs proceed to resolve the situation by agreement or may resort to the court for guidance with the oS 2a a>-: 18 benefit of protective orders and other judicial intervention as may be justified.” [Id at 817 5a Be Re 19 (emphasis added]. 6° 88 oS 20 In Rico, the California Supreme Court also answered the question of what should happen if the 21 receiving attorney fails to abide by the State Fund Rule. If such attomey is merely exposed to the 22 privileged material but doe nothing further, than a sanction such as disqualification is not warranted. 23 [Id. at 819]. However, if the receiving attorney disseminates and uses the material, then disqualification 24 of that attorney is appropriate. [Id.]. It does not matter how the receiving party received the material or 25 whether the receiving party believes the privilege has been waived for some reason. [See McD ermott 26 Will & Emery LLP v. Superior Court (2017) 10 Cal. App. 5th 1083, 1092]. “[R]egardless of how the 27 attorney obtained the documents, whenever a reasonable competent attomey would conclude the 28 documents obviously or clearly appear to be privileged and it is reasonable apparent they were Case No.: BC710428 File No.: 2365-002 8 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL inadvertently disclosed, the State Fund rule” applies. [Id]. “The receiving attomey assumes the risk of disqualification when the 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.” [Id. at 1093]. The attomey-client privilege protects the transmission of information regardless of the content or whether the information is discoverable from other source. [DP Pham, LLC v. Cheadle (2016) 246 Cal. App. 4th 653, 659-664]. It attaches to a confidential communication between the attorney and client and bars discovery of the entire communication, including unprivileged material. [Id.]. Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any 10 differentiation between “factual” and “legal” information. [Costco Wholesale Corp. v. Superior Court on gu (2009) 47 Cal.4th 725, 734]. A court’s determination of whether the privilege applies “does not involve go 12 the nature of the communications or the effect of disclosure but rather the existence of the relationship & 9g DS 13 at the time the communication was made, the intent of the client and whether the communication wt Eo a 14 emanates from the client.” [DP Pham LLC v. Cheadle (2016) 246 Cal.App.4th 653, 666 (intemal 88 15 citation omitted)]. “Consistent with these principles, California courts have recognized ‘we must 338 16 approach th[e] issue [of whether documents are protected by the attorney-client privilege] without GOS Hee Rc gulti7 Xs inspection of the documents themselves.’ (Cooke v. Superior Court (1978) 83 Cal.App.3d 582, 588; oS aa a>-: 18 see State Farm Fire & Casualty Co. v. Superior Court (1997) 54 Cal App.4th 625, [‘We will not take 5a Be Re 19 into consideration the actual privileged information in aid of our determination’].” [DP Pham LLC v. 6° 88 oS 20 Cheadle (2016) 246 Cal.A pp.4th 653, 666.]. 21 Disqualification is the appropriate remedy to protect the integrity of future proceedings in a 22 case and to minimize future prejudice to the opposing party. [See Clark v. Superior Court (2011) 196 23 Cal.App.4th 37, 55]. Otherwise, as the case moves forward, there would be the inevitable question of 24 the attorney’s source of knowledge on any issue that touches upon the subject matters contained in the 25 privileged documents. [Id]. “[D]isqualification is proper as a prophylactic measure to prevent future 26 prejudice to the opposing party from information the attorney should not have possessed.” [Id.]. 27 28 Case No.: BC710428 File No.: 2365-002 9 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL B. PLAINTIFF’S COUNSEL IGNORED THE STATE FUNDRULE AND USED THE PRIVILEGED MATERIAL IN THE DEPOSITION OF DEFENDANT ANDREA JOY COOK AND DISSEMINATED THE PRIVILEGED MATERIAL TO A COURT REPORTER AND THE PLAINTIFF There is no question that the nature of the documents inadvertently produced triggered the State Fund Rule. The documents are attorney-client communications between the Defendants and their attommeys regarding the present matter. Furthermore, the documents are labeled confidential and privileged. The communications are discussions between attorney and client regarding Defendants’ potential case and claims regarding this very matter, such a discussion plainly includes Defense Counsel’s impressions, conclusions, and opinions regarding the potential lawsuit by Plaintiff. The obvious content of the documents should have raised an immediate red flag to Plaintiff's 10 an 11 Counsel that the documents had been inadvertently produced. Any reasonably competent attorney Es go 12 would have immediately realized the potential privilege issues such a document raised, and Plaintiff's & 9g DS 13 Counsel plainly did recognize the issues the documents raised; they made use of such documents not wt less than a week later in the deposition of Defendant Cook, specifically relying on the contents and Eo a 14 work product notes of Defense Counsel, in the emails dated November 29, 2017 and November 19, 88 15 BS 16 2017 between attomeys for Defendants and Defendants and then attaching said emails as “Exhibit 41” GOS Hee Rc and “Exhibit 42” to said deposition. gulti7 Xs oS aa As soon as Plaintiff's Counsel glanced at the header of the first page of the email exchange, a>-: 18 5a Be they were under legal and ethical duties set forth in the State Fund Rule. Y et, they did not refrain from Re 19 6° 88 oS reading the document any more closely than necessary to realize that privilege issues were implicated. 20 21 Instead, they studied them closely and immediately made use of the documents. When the inadvertent production of the communications were disclosed by Plaintiff's Counsel at the deposition of Ms. Cook, 22 Plaintiffs Counsel was informed of the inadvertent disclosure and demanded the documents be 23 retumed. [Decl. M. Saltz § 13]. Thereafter, Defense Counsel, holder of the work product privilege, 24 demanded that the documents be returned and scrubbed from Plaintiffs Counsel’s files while 25 providing a detailed legal basis as to the privileged nature of the documents and the firm’s right to 26 demand its return. [Decl. M. Saltz 14]. 27 It is difficult to imagine a more egregious violation of the State Fund Rule. Upon receipt of the 28 communications, Plaintiff's Counsel began to use and formulate a plan to depose Defendant Cook with Case No.: BC710428 File No.: 2365-002 10 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL no attempt to notify opposing counsel in the case about the privilege issues. Plaintiff's Counsel then used said privileged material and disseminated the material to Plaintiff and to the court reporter. C. PLAINTIFF’S COUNSEL SHOULD BE DISQUALIFIED As discussed, if counsel decides to use material that it received that may be privilege without complying with the State Fund Rule, then the only real question on a motion for disqualification of the counsel is whether the material is in fact privileged. [See McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th at 1093]. Here, there can be no question that the communications inadvertently produced to Plaintiff's Counsel are privileged and subject to an absolute privilege from disclosure. 1. The Email Communications Between Defendants And Their Counsel Are 10 Attorney-C lient Communications and Attorney W ork Product an 11 To establish that a privilege exists, the proponent of the privilege only must make a prima facie Es go 12 showing of privilege. [DP Pham, LLC v. Cheadle (2016) 246 Cal App.4th 653, 659-60]. The burden & 9g DS 13 then shifts to the opponent to establish a waiver or an exception or that the privilege does not otherwise wt Eo a 14 apply. [Id.]. Attached to the supporting Declarations are the redacted, inadvertently produced 88 15 communications between Defendants Counsel and Defendants. As can be clearly ascertained from the BS GOS 16 recipients of the communications, the subject lines, bold lettering above and below on the documents Hee Rc gulti7 Xs stating “CONFIDENTIAL”, and from the emails themselves which contain statements emphasizing to oS aa a>-: 18 any reader that the communications were privileged and confidential, these documents are attorney- 5a Be Re 19 client privileged communications containing attorney work product and notes. Any competent lawyer 6° 88 oS 20 would not need to read any further to be put on notice the privileged nature of the documents. 21 The work product privilege applies to a “writing that reflects an attorney’s impressions, 22 conclusions, opinions, or legal research or theories.” [Code Civ. Proc. § 2018.030(a)]. Such a writing 23 “is not discoverable under any circumstances.” [Id.]. It is an absolute privilege from disclosure. [Rico, 24 42 Cal.4th at 814 (“the codified work product doctrine absolutely protects from discovery writing that 25 contain an attorney’s impressions, conclusions, opinions, or legal theories or research.”)] The attorney 26 is the holder of this absolute privilege. [See Wells Fargo Bank, NA. v. Superior Court (2000) 22 Cal.4th 27 201, 215. “The work product rule in California creates for the attorney a qualified privilege against 28 discovery of general work product and an absolute privilege against disclosure of writings Case No.: BC710428 File No.: 2365-002 11 MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL containing the attorney's impressions, conclusions, opinions or legal theories.” [BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1250 (emphasis added)]. The “only exception to the absolute work product protection ... is where there has been a waiver of the protection by the attorney’s voluntary disclosure or consent to disclosure of the writing to a person other than the client who has no interest in maintaining the confidentiality of the contents of the writing.” [Id. at 1261]. A writing protected by the absolute work product does not lose its privileged status even if it is not in the attorney’s p