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Keywords

litigationattorneydiscoveryappealdiscriminationwrit of mandamusprivileged communicationattorney-client privilege
attorneylawyerdiscoveryappealdiscriminationwrit of mandamusattorney-client privilegepiracy

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Hernandez v. Tanninen, 604 F.3d 1095, 109 Fair Empl.Prac.Cas. (BNA) 481, 10 Cal. Daily Op. Serv. 5725, 2010 Daily Journal D.A.R. 6856

Facts

Hernandez, a mechanic in the City of Vancouver's Fire Shop, claimed he faced discrimination and retaliation based on his race and national origin. He alleged that his supervisor, Mark Tanninen, conspired with the city to cover up these actions. Initially represented by attorney Gregory Ferguson, Hernandez disclosed communications regarding Tanninen's conduct, which led to the city seeking to compel the production of documents that Hernandez claimed were protected by attorney-client and work product privileges. The district court ruled that Hernandez waived these privileges, prompting the appeal.

Hernandez filed suit against the City of Vancouver and Mark Tanninen in 2004, asserting claims for race and national origin discrimination based on disparate treatment, retaliation, and a hostile work environment while employed as a mechanic in the City's Fire Shop.

Issue

Did the district court err in finding that Hernandez waived his attorney-client and work product privileges, and was mandamus relief warranted to review the discovery order?

Hernandez appeals the district court's decision finding that any attorney-client or work product privilege between Hernandez and his prior attorney, Gregory Ferguson, was waived and ordering the production of all thirty-five documents referenced in a privilege log.

Rule

The attorney-client privilege encourages full disclosure to attorneys, while the work product doctrine protects materials prepared by an attorney in anticipation of litigation. Both privileges can be waived, particularly when a party discloses privileged communications or raises claims requiring disclosure.

The attorney-client privilege is intended 'to encourage clients to make full disclosure to their attorneys,' recognizing that sound advice 'depends upon the lawyer's being fully informed by the client.'

Analysis

The court determined that the district court clearly erred in concluding that Hernandez's disclosures constituted a blanket waiver of both attorney-client and work product privileges. The court noted that while Hernandez disclosed certain communications with Ferguson regarding Tanninen, this did not extend to all communications or documents related to the case. The ruling's broad scope could lead to the disclosure of sensitive information beyond what was necessary for the case.

The district court did not clearly err by concluding that Hernandez waived both privileges as they pertained to the conspiracy claim.

Conclusion

The Court of Appeals granted the petition for a writ of mandamus, concluding that the district court's finding of a blanket waiver was particularly injurious and not justified. The district court was instructed to reconsider its order regarding the privilege log documents.

Accordingly, we grant the petition for a writ of mandamus.

Who won?

Rolando Hernandez prevailed in the appeal as the Court of Appeals granted his petition for a writ of mandamus, finding that the district court had erred in its ruling on privilege waivers.

The Court of Appeals, Benitez, District Judge, sitting by designation, held that mandamus relief was warranted for review of particularly injurious blanket discovery order.

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