Johnson v. Department of Transportation

Summary

The California Court of Appeal affirmed an order disqualifying the plaintiff’s attorney and three retained experts after they received, used, and disseminated an email that the trial court determined was protected by the attorney-client privilege. The court held that the disqualification motion was not barred as a renewed motion under Code of Civil Procedure section 1008 and concluded that the attorney’s conduct and continued use of the privileged communication justified disqualification. The document also includes an April 1, 2025 order modifying the published opinion and denying rehearing, with no change in judgment.

Holdings

1. The motion to disqualify was not a renewed motion seeking the same order as the protective-order or enforcement motions, so Code of Civil Procedure section 1008 did not bar the trial court from deciding it.
2. The Brown email was protected by the attorney-client privilege because it was a confidential communication from Caltrans's attorney to a Caltrans employee for the purpose of obtaining information relevant to litigation and preparing Caltrans's defense.
3. Caltrans did not waive the attorney-client privilege through Duncan's unauthorized disclosure, its limited descriptions of the email, or delay in filing the protective-order motion.
4. The crime-fraud exception did not defeat the privilege because Johnson made only conclusory allegations and failed to make a prima facie showing that Caltrans sought or obtained legal services to commit or plan a crime or fraud.
5. The trial court did not abuse its discretion by disqualifying Shepardson and the three experts because Shepardson violated his obligations concerning inadvertently disclosed privileged material, continued to use and disseminate the email after the protective order, and created a reasonable probability that the information would affect the proceedings to Caltrans's disadvantage and undermine the integrity of the judicial process.

Questions Presented

1. Whether Code of Civil Procedure section 1008 barred Caltrans's motion to disqualify counsel and the experts as a renewed motion seeking the same relief as earlier motions.
2. Whether the Brown email was protected by the attorney-client privilege despite being sent by Caltrans's attorney to a lower-level employee.
3. Whether Caltrans waived the attorney-client privilege through Duncan's disclosure, Caltrans's disclosures describing the email, or delay in seeking a protective order.
4. Whether the crime-fraud exception applied to the Brown email.
5. Whether the trial court abused its discretion by disqualifying Johnson's counsel and three retained experts for using and disseminating the privileged email.

Disposition

affirmed