## Facts

- A rollover crash involving a Mitsubishi Montero led plaintiffs to sue Mitsubishi and Caltrans for negligence, strict liability, and warranty-related claims.
- Mitsubishi’s counsel held a litigation-strategy meeting with Mitsubishi personnel and defense experts; Mitsubishi’s case manager took notes at counsel’s direction and later typed them on counsel’s computer.
- Counsel printed and annotated a single copy of the notes, which summarized a defense conference and assessed strengths and weaknesses of defense technical evidence.
- During a deposition, defense counsel briefly left the room; the annotated notes were inadvertently separated from counsel’s materials and came into plaintiffs’ counsel’s possession.
- Plaintiffs’ counsel realized quickly the document related to the case and was not intended to be produced, yet read it in detail, copied it, shared it with co-counsel and multiple experts, and used it to impeach a defense expert at a later deposition.
- The trial court found the document was attorney work product, that its receipt was inadvertent, and that plaintiffs’ counsel’s examination and use of it was unethical.
- Concluding Mitsubishi suffered incurable prejudice, the trial court disqualified plaintiffs’ counsel (and co-counsel) and also disqualified the plaintiffs’ experts who had seen or discussed the notes.

## Issues

1. What duties does an attorney have upon receiving materials that appear to be privileged or protected work product through inadvertence?
2. Whether the trial court properly exercised discretion by disqualifying plaintiffs’ counsel and experts after counsel read, copied, disseminated, and used inadvertently disclosed defense work product.

## Decision

- The California Supreme Court unanimously affirmed the disqualification order.
- The Court held the notes were absolute attorney work product because they reflected counsel’s impressions, conclusions, opinions, and legal theories.
- The Court adopted and reaffirmed the rule that a receiving lawyer may read only enough to determine the material is privileged or work product, must stop reading, and must immediately notify the sender.
- The Court held disqualification of counsel and experts was within the trial court’s discretion because the misuse created an unfair advantage that could not be cured by lesser measures.
- Arguments that the protection was waived or defeated by a crime-fraud theory were rejected on the record and in light of the document’s absolute work-product status.

## Legal Principles

- Writings reflecting an attorney’s impressions, conclusions, opinions, or legal theories are protected as absolute work product under California law.
- Inadvertent disclosure does not authorize an opponent to exploit apparent privileged or work-product materials.
- Upon recognizing likely privileged or work-product status, a receiving attorney must cease review beyond what is necessary to identify the protection and must promptly notify the sending party.
- Disqualification may be ordered where counsel’s review, dissemination, or use of inadvertently disclosed work product results in prejudice that cannot be adequately remedied by exclusion or other lesser sanctions.
- Trial courts have broad discretion in disqualification decisions, and appellate review is deferential where findings of prejudice are supported by substantial evidence.

## Conclusion

The court affirmed disqualification because plaintiffs’ counsel exploited inadvertently disclosed absolute work product, violating duties to stop review and notify opposing counsel, and the resulting exposure of defense strategy to counsel and experts created unfair, irremediable prejudice.


Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (Cal. 2007)