Recent Employment Law Decisions

California Courts of Appeal

CELA Prevailed on Appeal and Continues to Enforce its Listserv Protocols


An unknown CELA member forwarded appellant Robert Curtis an email from CELA’s confidential listserv, in violation of that member’s contract with CELA. Curtis, an attorney, provided the email to his client and his client’s trial counsel, who attached the email to a court filing in the Saccio case. CELA filed suit against Doe defendants and conducted discovery to ascertain the identity of the listserv breacher. Curtis, a witness but not a defendant, refused to identify the breacher at deposition, citing attorney work product privilege. CELA filed a motion to compel.

The trial court granted the motion and ordered Curtis to identify the breacher. Curtis appealed. Though the matter was not immediately appealable, the Court, citing the “unusual circumstances” of the case, chose to hear it as a petition for writ of mandate. The Court then denied the petition.

There are five factors to consider when assessing the propriety of treating an appeal as a writ petition: whether (1) waiting for a final judgment might lead to unnecessary trial proceedings, (2) the briefs and record included the necessary elements for a proceeding for writ of mandate, (3) there was no indication that the trial court would appear as a party in a writ proceeding, (4) the appealability of the order was not clear, and (5) the parties urged the court to decide the issues rather than dismiss the appeal. The Court of Appeal noted that the trial court’s order that Curtis disclose the name of the breacher might never be appealable since the issue would become moot once Curtis disclosed the name. Likewise, the matter was fully briefed, the record contained all of the necessary elements for a writ of mandate, and there was no indication the trial court would elect to appear. Therefore, it would serve no purpose to require Curtis to file a writ petition and have the parties re-file their briefs.

Attorney work product is governed by Code of Civil Procedure section 2018.030. Section (a) covers absolute work product, and section (b) covers qualified work product. Curtis claimed that the breacher was his non-testifying expert in the Saccio case. There was no case law directly on point, as the case law generally dealt with experts’ opinions, not whether the actual identities of the experts were subject to privilege. In claiming absolute work product protection under section (a), Curtis was required to show that disclosure would convey tactical information or attorney impressions from the Saccio case. Curtis failed to meet his burden and was not entitled to absolute work product protection. However, because disclosure of the breacher could affect Curtis’ ability to consult with him and prepare future cases, Curtis made a foundational showing of possible qualified work product protection under section (b). The Court did not hold that Curtis was in fact entitled to qualified work product protection. If the breacher’s identity was protected, CELA was required to show that denial of disclosure of the identity would unfairly prejudice CELA in preparing its case or result in an injustice. CELA provided more than enough evidence of injustice since it could not prosecute its case until the breacher was identified. Since the Court found that CELA met this burden, whether Curtis was entitled to qualified work product protection was not essential to the holding.

CELA Involvement: Thank you to CELA members Tracy L. Fehr and Bernard Alexander of Alexander Morrison + Fehr LLP and David deRubertis of The deRubertis Law Firm, APC.

COA Second District, Division 7. Filed 3/24/21. 62 Cal.App.5th 453. Opinion by Justice Feuer.

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Letter from the Editor
By Tracy L. Fehr, Esq., CELA Bulletin Editor

Tracy Fehr

As you might imagine, reviewing and summarizing the pertinent monthly cases for this Bulletin is a massive undertaking. This month, I am pleased to welcome guest editors Sarah Dawley, Stephen Ilg, Christa Riggins, Matthew Righetti, and Kyra Subbotin. Each of them drafted several of the summaries in this Bulletin, and I thank them profusely for their help. I hope you enjoy the variety and new perspectives these guest editors bring.



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