In Johnson v. California Department of Transportation, published March 17, 2025, the Third District Court of Appeal affirmed a trial court order disqualifying a plaintiff's attorney and experts. The plaintiff, an employee of the defendant agency, sued the agency for claims arising out of the employment. While the suit was pending, an attorney representing the agency in the action sent an e-mail to the plaintiff's supervisor. The supervisor was not a named party in the litigation. The e-mail stated that it was a privileged attorney-client communication, and/or was covered by the attorney work-product doctrine. The e-mail requested that if the reader was not the intended recipient, the reader contact the send and destroy all copies of the original message. The supervisor took a photo of the e-mail, and sent it to the plaintiff. The plaintiff gave it to his attorney. The plaintiff's attorney e-mailed the agency's attorney and advised him of the image of the e-mail. The plaintiff's attorney asserted the e-mail was intentionally disclosed, and so any privilege was waived. The agency's attorney asserted the e-mail was privileged, and requested that the plaintiff and his attorney delete or destroy the e-mail. The agency's attorney also asserted that the supervisor did not have the authority to waive attorney-client privilege on behalf of the agency. During meeting and conferring, the plaintiff's attorney wrote to the defense attorney that the e-mail would be provided to the plaintiff's retained experts and would be offered into evidence at trial. The plaintiff's attorney shared the e-mail with the plaintiff's experts. The agency moved for a protective order. The trial court determined that the e-mail was privileged, and that the agency had not waived the privilege. It prohibited the plaintiff and his attorney from any further dissemination of the e-mail, and ordered them to destroy or return all copies and file a compliance declaration stating they had done so. The plaintiff and attorney eventually filed declarations stating they had complied with the order, but also stating that the attorney had discussed the e-mail with several individuals on an ongoing basis as of the declaration's date. The attorney later asserted that the protective order did not bar verbal communication about the e-mail and its contents, and that the parties could testify about the e-mail. The agency moved to disqualify the plaintiff's attorney and the experts. The trial court concluded that because the plaintiff's counsel had used the e-mail as a component of the case he was preparing against the agency, his continued participation would cause prejudice. It granted the motion.
The appellate court concluded that the trial court's findings were supported by substantial evidence and the law. Public entities can claim the attorney-client privilege. Attorney communications with agents and employees of public entities may be covered by the privilege. Whether the attorney-client privilege applies to a communication is a question of fact if the evidence conflicts. The trial court concluded that the e-mail was privileged because the sender was an attorney representing the agency, the e-mail involved legal advice or information, and the nature of the relationship between the attorney and the supervisor was that of an agency attorney obtaining information relevant to litigation from an agency employee. Substantial evidence supports these determinations. The e-mail stated it was confidential. And the only relationship between the attorney and the supervisors stemmed from the attorney's need to defend his client in litigation brought by one of the supervisor's supervisees. The plaintiff failed to rebut the showing of privilege. Lower-level employees may be covered by the privilege. The supervisor's disclosure did not waive the privilege. The privilege was held by the agency, as represented by its management. The supervisor did not fall within this group. There is no evidence the agency authorized the supervisor to disclose the e-mail. The plaintiff failed to show waiver through delay in asserting the privilege or seeking the protective order. Based on the attorney's conduct in continuing to use the e-mail as part of the case, disqualification was appropriate.