## Facts

- Individuals alleging injuries from the antidepressant Paxil sought to pursue litigation against the manufacturer, GlaxoSmithKline.
- A law firm posted an online form titled “PAXIL WITHDRAWAL LITIGATION INITIAL CONTACT” to collect information from potential class members (and “loved ones”) about Paxil use and withdrawal symptoms.
- The form requested detailed factual information relevant to potential claims.
- To submit the form, users had to confirm a disclaimer stating they were not requesting legal advice and were not forming an attorney-client relationship by submitting it.
- Four of the five named plaintiffs completed the questionnaire before formally retaining the law firm.
- In discovery, the defendant sought production of those completed questionnaires to compare them to later discovery responses.
- The plaintiffs withheld the questionnaires, asserting attorney-client privilege under California law.

## Issues

1. Whether communications submitted by prospective clients through an online intake questionnaire are privileged under California Evidence Code § 951 when the questionnaire includes a disclaimer that no legal advice is sought and no attorney-client relationship is formed.
2. Whether mandamus relief is appropriate to prevent compelled production of such communications.

## Decision

- The Ninth Circuit granted the petition for a writ of mandamus.
- The court vacated the district court’s order compelling production of the questionnaires.
- The court held the questionnaires were privileged communications by prospective clients made with a view to obtaining legal services under California law.
- The court rejected treating the disclaimer as a waiver of confidentiality or privilege, concluding any ambiguity should not be used to forfeit privilege.

## Legal Principles

- Under California Evidence Code § 951, the term “client” includes a person who consults a lawyer “with a view to obtaining” legal services; privilege may attach even if no formal representation follows.
- Communications from prospective clients to a lawyer for the purpose of possible representation, including factual “intake” information, fall within the attorney-client privilege if made in good faith for legal advice or services.
- A disclaimer aimed at avoiding premature legal advice or inadvertent formation of an attorney-client relationship does not, without clear language, negate confidentiality or waive privilege.
- Mandamus is an appropriate remedy to prevent disclosure of privileged materials because disclosure cannot be cured on appeal after production.

## Conclusion

The court ruled that online intake questionnaires completed by prospective clients seeking potential representation were privileged under California law, and it used mandamus to prevent irreparable harm from compelled disclosure ordered in discovery.


Barton v. U.S. Dist. Ct. for Cent. Dist. of Cal., 410 F.3d 1104 (9th Cir. 2005)