Tucker Ellis, LLP v. Superior Court

The attorney-work product privilege in documents prepared by a law firm’s employee-attorney while representing the law firm’s client is held by the law firm, not the employee-attorney who prepared the documents.  Nelson, an attorney, formerly employed by Tucker Ellis, a law firm, wrote emails (in his capacity as a Tucker Ellis employee) to a consultant hired by Tucker Ellis to assist in litigation for a Tucker Ellis client.  In this context, the holder of the attorney work product protection under CCP 2018.030 was Tucker Ellis, the employing law firm, not Nelson, the lawyer-employee who wrote the emails in question.  This was not dictated by which of the two “owned” the communications but rather by the fact when an employee creates a privileged communication in the scope of his work for the employer entity, it is the entity, not the employee, which is the holder of the privilege.  See People ex rel. Lockyer v. Superior Court (2000) 83 Cal.App.4th 387.

California Court of Appeal, First District, Division 3 (Jenkins, J.); June 21, 2017; 2017 WL 2665188

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