War Stories: How to Destroy Your Opponent’s Attorney Client Privilege

We start thinking there's just something that we remember from law school about disclosing reports that are arguably protected by the attorney-client privilege to outside sources which makes the attorney-client privilege go away and then anyone can get access to those reports so when I first started out practicing law I didn't know what I was doing that came right out of law school in law school they really don't teach you how to be a lawyer they teach you black letter law they teach you about torts and contracts but actually being a lawyer that's left to you to figure out on your own and I never really wanted to work for a large firm so I just hung out a shingle and started practicing law and one of the first cases I came across because you take anything that comes into your office were these two ladies that had been sexually harassed by a superintendent of a particular School District and in that litigation I had to figure out how to file a lawsuit and I had to figure out how to deal with the opposing lawyers and I was going against these two lawyers that both had combined like 60 years experience litigating cases and here I was with such limited experience but in the case we had learned that a report had been made a report had been made a expert lawyer had been hired by the district to come in and interview these two ladies and interview all the witnesses in the case to determine if sexual harassment had in fact taken place and it's it's typical in these sexual harassment cases like this where an outside lawyer will be brought in by the defense lawyers to do an investigation the investigation is not always to be helpful to the plaintiffs case I can promise you that the people that have been harmed by this but be that as it may this investigation was done so we went ahead and filed the civil lawsuit the investigation was done and then as a young lawyer I was being told by these older lawyers I didn't know what I was doing which was true they told me that I was gonna lose which I felt like I was gonna lose I didn't feel like I was adequate so I would spend a lot of time reading what we call the rudder guide here in California it's it's for lawyers to understand black-letter law to understand how better to bring their cases and I would spend just hours and hours and hours doing Civil Procedure before trial reading the evidence code and I learned from somebody somebody called my office and left a tip that this investigation that had been done by this outside lawyer who had been hired by the defense lawyers to investigate whether sexual harassment had actually taken place at the school I learned that somebody at the school district had sent that investigative report it was about 30 pages long to some third party somebody that was not connected to the litigation and again Here I am this young lawyer I don't know what the I don't know a lot of the rules I'm learning all these rules for the first time as I'm going through the case and I have my partner Keith Davidson and we're talking about how best to bring these cases forward and we start thinking there's just something that we remembered from law school about disclosing reports that are arguably protected by the attorney-client privilege to outside sources which makes the attorney-client privilege go away and then anyone can get access to those reports and so sure enough we found out that in fact the report had been sent out to this outside entity so we went ahead and called up the defense attorneys who again had told me that I was young didn't know what I was doing that I was gonna lose this case and you know I should just walk away from it and I said hey guys it's my understanding this report is been made just spend as close to a third party outside the litigation can you please send the report to me and I didn't hear anything back so a week later I contacted them again hey guys I'm just following up on my request to get this report and again they they they stalled so I told them one last time please tell me you're gonna provide this report to me and if you won't then I'm going to file a motion with the judge so sure enough they didn't respond I filed a motion with the judge the hearing came up they came in and they tried their best to say that somehow someway this report hadn't been disclosed to third parties and the judge wasn't having it judge follow-through how the report was made how it had been disclosed and ordered that it be disclosed to us so for the first case first big case that I really worked on or I didn't really know a whole lot of what I was doing I was studying a lot learning a lot I had a huge advantage because I was able to get this report that detailed all the witness statements my clients statements the person who had done the sector harassment there was a big portion on the finding of fact of whether he had sexually harassed them or not and he was basically the blueprint or the roadmap for that entire case going forward if I hadn't had that for this case I probably would have still done okay I think but he was nice to have it long story short here this case worked out really well for my two clients and the one of the lawyers that had told me I was young and didn't know what I was doing and that I was going to lose at the end of the case he took me out to dinner and he told me that he was very inspired by me he said that as a young lawyer I had really fought hard and that he admired me for my hard work and that's when it hit me that a lot of this is gamesmanship between the lawyers the lawyers trying to make the other lawyer feel like they can't bring the case forward and so this gave me a lot of confidence as a young lawyer it gave Keith and I both as young partners as well confidence in the cases we were handling and how we were moving them forward so this is a pleasant memory I have about one of my first big cases and how I was able to get through some of the hearts. [Music]