Attorney Risks Disqualification If After Receiving Presumptively Privileged Communication Fails to Notify Privilege Holder and Uses Document Pending Privilege Determination by Court
May 03, 2017 —
David W. Evans & Stephen J. Squillario - Haight Brown & Bonesteel LLPIn McDermott Will & Emery LLP v. Superior Court (4/18/2017 – No. G053623), the Fourth Appellate District, in a 2-1 decision, considered two distinct issues: 1. Whether the attorney-client privilege for a confidential e-mail communication between a client and his attorney had been waived by the client’s inadvertent disclosure of the communication to a third party; and 2. Whether the opposing counsel’s failure to respect the claimed privilege as to the inadvertently produced document or to follow the rules for handling such documents set forth in State Compensation Ins. Fund v WPS, Inc. (1999) 70 Cal.App.4th 644 (State Fund) supported the trial court’s disqualification of counsel and his law firm.
This case arose from an intra-family dispute over the deceased matriarch’s substantial investment holdings, a related probate matter, and two subsequent legal malpractice actions. The opinion sets forth in great detail the facts surrounding the claimed inadvertent disclosure by the client (i.e., the privilege holder) of the subject attorney-client e-mail communication, its subsequent dissemination to, and use by, the client’s family members, the ultimate receipt and review by an opposing family member’s counsel, the efforts by the client’s counsel to assert the privilege and “claw-back” the document, and in the face of this privilege claim, the opposing counsel’s extensive use of the document during discovery, including depositions, in the legal malpractice actions. The opposing counsel, who had received the subject document from his own client, had independently concluded that the clearly privileged document lost its privileged status, believing that the privilege had been waived either because of disclosure to third parties or that his obligation to return inadvertently disclosed documents only applied to those produced in litigation during discovery. As a result, the opposing counsel refused all demands for the return or destruction of the document and insisted upon continuing to use it. This dispute finally came to a head over two years after the client’s disclosure in the context of the client’s motion for a judicial determination that the document was privileged (which the trial court granted) and then a motion to disqualify the opposing counsel (which the trial court also granted); both decisions were eventually reviewed by the appellate court.
Reprinted courtesy of
David W. Evans, Haight Brown & Bonesteel LLP and
Stephen J. Squillario, Haight Brown & Bonesteel LLP
Mr. Evans may be contacted at devans@hbblaw.com
Mr. Squillario may be contacted at ssquillario@hbblaw.com
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Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty to Defend
February 14, 2023 —
Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery BlogIn
First Mercury Insurance Co. v. First Florida Building Corp., et al., a federal district court ordered that an insurer had a duty to defend its insured against an underlying personal injury lawsuit. 2023 WL 23116, at *1 (M.D. Fla. Jan. 3, 2023). First Mercury is a cautionary tale about how insurers may try to circumvent their obligations by improperly considering extrinsic evidence when determining whether they have a duty to defend their insureds.
First Mercury is a coverage dispute over an underlying personal injury lawsuit that was filed against the insured, a construction company, for injuries the claimant allegedly sustained at a construction site. Id. The claimant alleged that he was at the construction site as an invitee who was “working with” the insured. Id. The insurer agreed to defend the insured against the personal injury lawsuit under a reservation of rights. Id. However, the insurer filed a coverage action seeking a declaration that coverage for the personal injury lawsuit was excluded under the policy. Id. Specifically, the insurer, on summary judgment, argued that the claimant was an employee of the insured who was injured in the course of his employment, thus falling within the employer’s liability and workers’ compensation exclusions in the policy. Id. Although the insurer acknowledged that the personal injury complaint against the insured triggered its duty to defend under the policy, the insurer argued that those exclusions relieved its duty to defend or indemnify the insured. Id.
Reprinted courtesy of
Lorelie S. Masters, Hunton Andrews Kurth and
Yaniel Abreu, Hunton Andrews Kurth
Ms. Masters may be contacted at lmasters@HuntonAK.com
Mr. Abreu may be contacted at yabreu@HuntonAK.com
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California Contractors: New CSLB Procedure Requires Non-California Corporations to Associate All Officers with Their Contractor’s License
April 19, 2021 —
Amy Pierce, Mark Oertel & John Lubitz - Lewis BrisboisAs of July 1, 2020, “[e]very person who is an officer, member, responsible manager, or director of a corporation or limited liability company seeking licensure under this chapter shall be listed on the application as a member of the personnel of record,” and they must match those officers listed on California Secretary of State’s (SOS) records. (Cal. Bus. & Prof. Code § 7065 (b)(1)). This is a deviation from the Contractors State License Board’s (CSLB) past practice of requiring foreign corporations to associate as personnel of record only their president, in contrast to requiring domestic corporations to associate their president, secretary, and treasurer.
Beware that the CSLB may discover that the licensee’s personnel of record are incomplete or incorrect when reviewing a license renewal application, because it will compare the SOS’s records to the license renewal application. A license renewal application requires the licensee to list its qualifier and personnel of record. If the SOS and CSLB records do not match, this could delay approval of the license renewal application until the missing personnel are added and fingerprinted.
Reprinted courtesy of
Amy Pierce, Lewis Brisbois,
Mark Oertel, Lewis Brisbois and
John Lubitz, Lewis Brisbois
Ms. Pierce may be contacted at Amy.Pierce@lewisbrisbois.com
Mr. Oertel may be contacted at Mark.Oertel@lewisbrisbois.com
Mr. Lubitz may be contacted at John.Lubitz@lewisbrisbois.com
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Boston Team Secures Summary Judgment Dismissal on Client’s Behalf in Serious Personal Injury Case
October 21, 2024 —
Lewis Brisbois NewsroomBoston, Mass. (October 14, 2024) - Boston Managing Partner Kenneth B. Walton and Partner Matthew M. O' Leary recently secured summary judgment on behalf of a civil engineering firm in a serious personal injury matter arising from a trip-and-fall incident in a mall parking lot.
The client was retained to provide site civil engineering design for the parking lot of a local mall. The design included multiple bioretention areas known as rain gardens. In November of 2019, a woman tripped and fell while attempting to cross a rain garden to reach her car. She suffered significant bodily injuries, including a fracture of the cervical spine that resulted in partial paralysis.
The woman and her husband sued the mall's owner for negligence and loss of consortium in June 2021. The owner, in turn, impleaded Lewis Brisbois' client and the lot's builder, asserting third-party claims for contribution, contractual and common law indemnity, and breach of contract. In addition, the builder cross-claimed against Lewis Brisbois' client for contribution and common law indemnity.
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Lewis Brisbois
A Trivial Case
November 07, 2022 —
Garret Murai - California Construction Law BlogConstruction defect cases leading to physical injury are rarely trivial, at least in the eyes of the injured party, but alas sometimes they are as the next case,
Nunez v. City of Redondo Beach, 81 Cal.App.5th 749 (2022), demonstrates.
The Nunez Case
Monica Nunez, Vice President of Finance and Accounting at a restaurant chain and a part-time fitness instructor at a gym, tripped and fell on a public sidewalk in Redondo Beach. Ms. Nunez, who was in her forties, tripped following a group run when her back foot hit a sidewalk slab that was elevated at its highest point approximately 11/16 inches. Ms. Nunez landed on her left knee and right arm and in the process fractured her kneecap and elbow.
Ms. Nunez sued the City of Redondo Beach for her injuries alleging causes of action for dangerous conditions on public property under Government Code section 835, nuisance under Government Code section 815.2, and failure to perform a mandatory duty under Government Code section 815.6.
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Lewis Brisbois Ranked Tier 1 Nationally for Insurance Law, Mass Tort/Class Actions Defense, Labor & Employment Litigation, and Environmental Law in 2024 Best Law Firms®
November 06, 2023 —
Lewis Brisbois(November 2, 2023) - Lewis Brisbois has been ranked Tier 1 nationally by Best Lawyers for ‘Insurance Law,’ ‘Mass Tort Litigation / Class Actions – Defendants,’ ‘Litigation - Labor and Employment,’ and ‘Environmental Law,’ as well as ranking Tier 1 in an array of practice areas across 25 metro regions in its 2024 edition of Best Law Firms®.
In addition to Lewis Brisbois' national ranking, the firm was also ranked Tier 1 in the following regional categories:
Akron
- Commercial Litigation
- Corporate Law
- Mergers & Acquisitions Law
- Tax Law
- Trusts & Estates Law
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Lewis Brisbois
UPDATE: ACS Obtains Additional $13.6 Million for General Contractor Client After $19.2 Million Jury Trial Victory
June 27, 2022 —
Kristina Southwell - Ahlers Cressman & Sleight PLLCIn March 2022, ACS obtained a $19.2 million jury verdict in favor of its general contractor client after a lengthy trial against the project owner. Since that time, ACS has successfully obtained awards through post-trial motion practice for an additional $13.6 million in favor of the general contractor. These awards increased to total judgment to more than $32 million.
When moving to enter judgment on the jury verdict, ACS successfully argued for and obtained more than $5 million in prejudgment interest on the jury verdict to compensate the general contractor for having to go years without payment for work performed. ACS also successfully obtained a decree of foreclosure on its construction lien and incorporated language in the judgment requiring the owner to pay an additional $1.9 million in Washington State sales tax on the jury award. Finally, under the authority of the Washington construction lien statute (RCW 60.04.181), ACS sought to recover the attorneys’ fees, costs, and expenses incurred by the general contractor client during the course of litigation. ACS succeeded in obtaining an award for more than $6.6 million for various expenses and costs including ACS’s attorney fees, all the costs of hiring expert witnesses, costs and expenses related to subcontractors’ presentation of pass-through claims against the owner, and other litigation costs and expenses.
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Kristina Southwell, Ahlers Cressman & Sleight PLLCMs. Southwell may be contacted at
wendy.wheatmccoy@acslawyers.com
Managing Infrastructure Projects with Infrakit – Interview with Teemu Kivimäki
June 09, 2016 —
Aarni Heiskanen – AEC BusinessFinland has been in the vanguard in adopting building information modeling (BIM) for infrastructure construction. In this interview I discuss with Teemu Kivimäki, CEO of DCS Finland, how Infrakit helps in projects that use BIM.
Can you say a few words about the background of your company and how Infrakit came about?
The background of DCS Finland (short for Digital Construction Solutions Finland) is in research done in University of Oulu where I worked as a research scientist on construction automation from 2007 to 2010. We were doing research with big infrastructure construction companies, exploring ways to improve worksite management and data flow.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aarni@aepartners.fi
