Attorneys for Plaintiffs
NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, and LAWRENCE A. SCHOENBERG

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

NURIA SCHOENBERG NONO, RONALD R. SCHOENBERG, LAWRENCE A. SCHOENBERG, individuals, Plaintiffs,

vs.

UNIVERSITY OF SOUTHERN CALIFORNIA, a nonprofit corporation; and DOES 1 through 10, inclusive, Defendants.

CASE NO: BC131528
(Assigned to Hon. William C. Beverly, Jr. - Department 46)

PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL PRODUCTION OF INTERNAL MEMOS WITHHELD ON ACCOUNT OF PRIVILEGE

Date: April 15, 1996
Time: 8:30 a.m.
Dept.: 46
Trial Date: None
Motion Cutoff: None
Discovery Cutoff: None
 

MEMORANDUM OF POINTS AND AUTHORITIES

"A corporation cannot be permitted to insulate its files from discovery simply by sending a 'cc' to in-house counsel." U.S. Postal Service v. Phelps Dodge Refining Corp, 852 F.Supp. 156, 163-4 (E.D.N.Y. 1994).

I. INTRODUCTION.

The University has failed to establish that the five memos from Paul Zukofsky to Lloyd Armstrong are privileged from disclosure. The documents sought by this motion are not the documents in the possession of the University's General Counsel, but rather the original documents sent from Mr. Zukofsky to Provost Armstrong, which are presumably in the Provost's files. (See Separate Statement.) The allegation that copies of these documents may also have been transmitted to the General Counsel for his information or review does not make the documents sent to Provost Armstrong privileged. The University has not met its burden of proving that the withheld documents are covered by the privilege. The privilege is strictly construed and if there is any doubt, the Court is authorized to examine the documents in camera.

II. BECAUSE THE UNIVERSITY HAS FAILED TO MEET ITS BURDEN OF PROOF REGARDING THE "DOMINANT PURPOSE" OF THE COMMUNICATIONS FROM MR. ZUKOFSKY TO PROVOST ARMSTRONG, THE COURT SHOULD COMPEL PRODUCTION.

The original documents sent from Mr. Zukofsky to Provost Armstrong are not "confidential communications between client and lawyer." Evid. Code ¤ 952. Neither Mr. Zukofsky, nor Provost Armstrong, are attorneys. Therefore, the subject documents are not presumptively privileged. fn.1 The burden is on the University to prove that the privilege applies to the communications between Mr. Zukofsky and Provost Armstrong. Sierra Vista Hospital v. Superior Court, 248 Cal.App.2d 359, 365 (1967) ("The party claiming the privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.") This should be the end of the discussion because the documents at issue are not communications between an attorney and a client, but rather communications between two University employees.

However, the University claims an exception that applies the privilege when the communication passes through the hands of a non-lawyer who is acting as a conduit or agent of the attorney necessary to transmit the privileged communication. So, for example, in Sierra Vista, 248 Cal.App.2d 359, cited by the University, the hospital administrator was instructed by the hospital's insurance carrier to send a "Confidential Report of Incident" to the insurance company "to be transmitted to and used by the attorney representing the hospital in the event of litigation." Id. at 365. The Court ruled that the transmission to the insurance carrier did not waive the privilege because the insurance carrier was acting as an agent for transmitting the privileged communication between the client and its attorney. Id. at 367; see also Holm v. Superior Court, 42 Cal.2d 500, 508 ("where the communication is between corporate employees . . . for the purpose of redelivery to a corporate attorney the privilege attaches").

No such facts exist in this case and the University has not met its burden of proof, because it has not established that the dominant purpose of the communications to Provost Armstrong were to facilitate the attorney-client relationship. Mr. Zukofsky does not (and cannot) allege that he sent the documents to Provost Armstrong so that Provost Armstrong could deliver them to the General Counsel. Further, even if part of the reason for the communication qualifies for the privilege, the University has the burden of proving that the dominant purpose of the communication was to further the attorney-client relationship. People v. Cabral, 12 Cal.App.4th 820, 827 (1993) (person asserting privilege has burden of proving dominant purpose of communication). Nowhere does Mr. Zukofsky allege or prove that the dominant purpose of sending his memos to Provost Armstrong was to further the attorney-client relationship.

Although no known California authority directly addresses the question of whether the transmission of a copy of a document to an in-house attorney cloaks the original communication, there are a number of recent federal decisions in this area, all of which support plaintiffs' position. The standard for reviewing such extended claims of privilege are described in U.S. Postal Service v. Phelps Dodge Refining Corp, 852 F.Supp. 156 (E.D.N.Y. 1994): [T]he mere fact that a communication is made directly to an attorney, or an attorney is copied on a memorandum, does not mean that the communication is necessarily privileged. The information-holder's motive for the communication, to the extent that it can be discerned from the document, thus is an important consideration. Id. at 160 (citations omitted); cf. Holm v. Superior Court, 50 Cal.2d 500, 510 (1954) ("the crucial question is the purpose for which the communication originated").

In U.S. Postal Service, the court reviewed communications among Dodge Phelps employees where in-house attorneys were also sent copies. The documents included a memorandum summarizing a meeting and a report regarding actions to be taken. The Court stated that the documents would be privileged if they contained confidential information "and a dominant purpose of the communication was to obtain legal advice." Id. at 163 (emphasis added); cf. Holm, 42 Cal.2d 500, 507 (Calif. law also applies "dominant purpose" test). After reviewing the documents, the Court "found no documents qualified for the privilege because all were written for some other purpose than to seek legal advice and would have been prepared whether or not the attorney was sent a copy." Id. at 163. In In re Conticommodity Services, Inc. Securities Litigation, 1988 WL 96178 (N.D.Ill.), the author of the document was asked by the president of his company to investigate a customer's complaint concerning his account. On a motion to compel production, the author submitted an affidavit stating that he understood that the purpose of the assignment was "to enable senior management . . . to obtain legal advice regarding [the] complaints from . . . senior in-house counsel." Id. at p. 2. The author sent his report to a distribution list of three senior management executives, as well as to the senior in-house counsel who was involved in the matter. The Court concluded that the document was not privileged: [Management] may have intended to also get legal advice regarding the results of the investigation, but the [document] itself is a report to the president not part of a communication seeking legal advice. The document is not protected by the attorney- client privilege. Id. at p. 3.

A similar result was reached in Continental Ill. Nat'l Bank and Trust Co. v. Indemnity Ins. Co., 1989 WL 135203 (N.D.Ill.): The second letter [between the plan manager and the acting secretary of the U.S. Department of Commerce, Economic Development Administration ("EDA")] assigns a carbon copy to an EDA attorney. The second letter clearly falls beyond the scope of the privilege. The second letter is not primarily directed to an attorney, nor does it seek legal advice. The carbon copy may have served to keep counsel for EDA informed of the contents of the letter. This incidental communication to an attorney is not protected by the privilege. Id. at p. 3. In Simon v. G.D. Searle & Co., 816 F.2d 397 (8th Cir. 1987), cert. denied G.D. Searle & Co. v. Simon, 484 U.S. 917 (1987), the Court of Appeals affirmed the statement of law in a special master's report which held that A business document is not made privileged by providing a copy to counsel. . . . Thus, those documents from one corporate officer to another with a copy sent to an attorney do not qualify as attorney client communications. Id. at 403. The special master had reviewed the documents and redacted sections of privileged materials from within individual documents. Id.; see also New Orleans Silversmiths, Inc. v. Miles, Inc., 1993 WL 149081 (E.D.La.) (only document transmitting attorney's advice is privileged).

These cases are all absolutely indistinguishable from the present case, and nothing in the declarations of Robert Lane or Paul Zukofsky supports a different conclusion for the documents sent by Mr. Zukofsky to Provost Armstrong. There is absolutely no indication that the documents were sent to Provost Armstrong so that he could deliver them to the General Counsel (indeed, copies were sent to the General Counsel directly). There is also no indication that the dominant purpose of sending the documents to Provost Armstrong (or to any of the other University employees who received copies) was to seek legal advice. Mr. Zukofsky had many times written the General Counsel directly when he needed legal advice. (See Defendant's Privilege Log, Ex. V.) Since the University has not met its burden of proving that the communications between Mr. Zukofsky and Provost Armstrong are privileged, the documents must be disclosed.

III. ALTHOUGH THE COURT MAY COMPEL PRODUCTION WITHOUT REVIEWING THE DOCUMENTS, IF NECESSARY, THE COURT MAY CONDUCT AN IN CAMERA REVIEW OF THE DOCUMENTS.

As discussed above, the Court does not need to review the documents in camera, because the University has failed to meet its burden of proof to establish that the communications from Mr. Zukofsky to Provost Armstrong were subject to the attorney-client privilege. The University is absolutely correct that Evidence Code section 915 provides that under most circumstances a court may not require the disclosure of information claimed to be privileged "in order to rule on the claim of privilege." Section 915 applies to all claims of privilege and not just the attorney client-privilege. However, "the rule is not absolute." Cornish v. Superior Court, 209 Cal.App.3d 467, 480 (1989). "[C]ourts have recognized, if necessary to determine whether an exception to the privilege applies, the court may conduct an in camera hearing notwithstanding Evidence Code section 915." Id.; see, e.g., Mavroudis v. Superior Court, 102 Cal.App.3d 594, 606-7 (1980) (trial court ordered to conduct in camera review of psychiatric records); In re Lifschutz, 2 Cal.3d 415, 437, n. 23 (1970) (when privilege "depends on the content of the communication" some confidential information may have to be revealed).

Here, as the University admits (Opp. at 11:15-18), the question is whether the dominant purpose of the communication to Provost Armstrong was to facilitate an attorney client communication between Mr. Zukofsky and the General Counsel. That is, the Court must determine whether the exception to the privilege for documents with a dual purposes applies in this case. Holm, 42 Cal.2d 500, 507 (the trial court must determine whether the "dual purpose" exception to the privilege applies). A review of the documents should not be required because the University has not met its burden of establishing that the dominant purpose for Mr. Zukofsky sending memos to Provost Armstrong was to seek legal advice. However, if the Court does find that it needs to review the documents to determine whether they come under the "dominant purpose" exception, a determination may be made by reviewing the documents themselves, since the contents of the documents will likely be dispositive of the issue. Cornish v. Superior Court, 209 Cal.App.3d 467, 480 (1989) ("[t]he rule does not preclude the court from reviewing the facts asserted as the basis for the privilege").

IV. CONCLUSION.

For all of the foregoing reasons, plaintiffs' motion should be granted and the University should be ordered to produce the memos from Mr. Zukofsky to Provost Armstrong.

KATTEN MUCHIN ZAVIS & WEITZMAN

By:  E. Randol Schoenberg
Attorneys for Plaintiffs
 

fn.1 This motion does not concern the actual copies of the documents sent to the General Counsel, which may or may not be privileged (depending on the content). Here, the University is attempting to use the fact that copies were sent to the General Counsel to cloak the documents in Provost Armstrong's possession which are communications between Mr. Zukofsky and Provost Armstrong. This cannot be done.