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Doug Cornelius
Beacon Capital Partners, LLC
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2 Responses to “Contact”

  1. Marty Fox
    September 4, 2009 at 5:57 pm

    Doug, Your interest in the effect of the Textron case reminded me of reading the articles attached below.

    ———- Forwarded Message ———-

    DAILY JOURNAL NEWSWIRE ARTICLE
    http://www.dailyjournal.com
    © 2009 The Daily Journal Corporation.
    All rights reserved.
    ——————————————-

    September 03, 2009

    PRIVILEGE CLAIM GETS STRONG RESPONSE IN STATE HIGH COURT
    By John Roemer
    Daily Journal Staff Writer
    SAN FRANCISCO – Justice Carol A. Corrigan made her strong feelings in favor of the attorney-client privilege clear Wednesday as the California Supreme Court considered the issue at oral argument.

    Discount retailer Costco Wholesale Corp. and its allies among corporate defense attorneys tried hard to persuade the high court to reverse a Los Angeles appellate panel ruling that let plaintiffs’ lawyers view parts of an investigation letter from a Costco outside counsel in class action litigation over pay for junior managers.

    Costco settled the case for $15 million last month but asked the court to retain jurisdiction to answer the privilege question.

    “Can you have an attorney-client relationship that would not invoke the privilege?” Corrigan asked Victor Schachter of Mountain View’s Fenwick & West, representing the California Emploment Law Counsel, a business lobby that sided with Costco as a friend of the court. Costco Wholesale Corp. v. Superior Court, S163335.

    Corrigan was calling into question Los Angeles County Superior Court Judge Emilie H. Elias’ decision to turn over to the plaintiffs parts of the 22-page letter from Costco’s outside counsel to Costco’s corporate counsel. It discussed the outside counsel’s interviews with Costco workers as the company prepared its defense to the plaintiffs’ wage and hour claims.

    Elias enlisted a court referee to read the letter and redact privileged advice but let the plaintiffs’ lawyers view factual information that the judge ruled was open to discovery. The 2nd District Court of Appeal affirmed Elias.

    “The trial court felt it could parse out the legal advice,” Schachter said.

    “Once a court does that, it erodes the quality of the privilege,” Corrigan said.

    The plaintiffs’ appellate attorney, Lee M. Gordon of Los Angeles’ Hagens Berman Sobol Shapiro, contended the referee redaction procedure was proper because of the prospect defendants might use the attorney-client privilege to hide facts that plaintiffs deserve to see.

    “The privilege can be used to suppress discovery,” Gordon said.

    Corrigan wasn’t satisfied. “But doesn’t that completely gut the privilege – for plaintiffs to learn what the defendants’ lawyer told them?” she asked.

    Representing Costco, David D. Kadue of Seyfarth Shaw’s Los Angeles office asserted, “There was no concealing of facts in this case, but our communication about the facts needs to be protected.”

    Sheppard Mullin Richter & Hampton Los Angeles partner Kelly L. Hensley wrote the letter to Costco’s corporate counsel in 2000 after the company retained her to interview warehouse managers about the duties of the department managers who worked under them and to advise on their status.

    A year later, Costco reclassified the department managers from salaried to nonexempt employees, making them eligible for overtime pay. Costco said it made the move for efficiency’s sake and to “avoid a wave of potential litigation.”

    But litigation arrived anyway in 2003 when the Hagens Berman firm filed suit on behalf of a class of about 2,000 Costco department managers who were deprived of overtime before 2001.

    The Hagens Berman lawyers asserted in court papers that the lower courts were right to inspect Hensley’s letter and turn over factual information that was not privileged and was clearly open to discovery.

    Justice Marvin R. Baxter asked whether the appellate opinion affirming the referee and redaction procedure would apply to criminal cases.

    “Yes,” Kadue replied, “it applies across the whole gamut of legal proceedings.”

    Schachter, representing the employer lobby, asked the court to include in its opinion three clear rules regarding the attorney-client privilege: that everything an attorney reports to a client is absolutely privileged; that trial courts can never require privileged information be given to the opposition; and that any invasion of the privilege amounts to irreparable harm.

    The Association of Southern California Defense Counsel and the Los Angeles County Bar Association also joined Costco as friends of the court.

    john_roemer@dailyjournal.com

    ————Forwarded Message————

    Privilege Under Fire on Opinion Letters

    Mike McKee, The Recorder, August 31, 2009

    SAN FRANCISCO — While working with Costco Wholesale Corp. on a wage-and-hour issue nine years ago, Los Angeles attorney Kelly Hensley put together a 22-page opinion letter containing legal advice and factual information gleaned from two company managers.

    Little did the Sheppard, Mullin, Richter & Hampton partner realize that letter would result in a years-long battle over attorney-client privilege — one that Wednesday goes before the California Supreme Court during oral arguments in San Francisco.

    The court will be asked to decide whether factual information — such as witness statements and fact summaries — is as privileged in opinion letters as the legal advice being given. Specifically, the court will be asked to decide whether trial court judges may conduct in camera reviews of opinion letters and then share redacted versions of them with the opposing party.

    The underlying ruling by Los Angeles’ Second District Court of Appeal, which held that not all information in opinion letters is necessarily confidential, has worried some legal organizations.

    “Without faith that such communications will be shielded from both opposing counsel and the judicial officers who may ultimately determine the parties’ rights,” Fenwick & West partner Victor Schachter wrote in an amicus curiae brief for the California Employment Law Council, “employers and their lawyers will not have the candid exchanges that are so vital to the goals of proper legal advice and proactive legal compliance.”

    Schachter, who will share argument time with Costco’s lawyer, was echoed by attorneys for the Association of Southern California Defense Counsel and the Los Angeles County Bar Association, who said in a separate brief that the Second District ruling “threatens the sanctity of the attorney-client relationship.”

    Costco’s woes began in 2003 when eight department managers sued to recover unpaid overtime after discovering the company had mistakenly classified them as exempt employees. Upon learning about Hensley’s opinion letter — also described as an investigation report — a year later, the plaintiffs moved for its production.

    Over Costco’s objections, Los Angeles County Superior Court Judge Amy Hogue — acting as a discovery referee for fellow Judge Emilie Elias — suggested conducting an in camera review to ferret out what information was privileged. After conducting that review, Hogue found in January 2007 that the opinion letter’s factual observations and statements by Costco managers weren’t confidential and that true legal advice could be redacted.

    Hogue noted that the California Supreme Court in 1964′s D.I. Chadbourne Inc. v. Superior Court (Smith) , 60 Cal.2d 723, held that “statements obtained in attorney interviews of corporate employee witnesses are generally not protected by the corporation’s attorney-client privilege.”

    Last year, the Second District denied Costco’s writ of mandate, ruling that the company hadn’t shown that it would be “irreparably harmed” if the opinion letter was released as redacted.

    “Parties claiming privilege cannot be the sole arbiters of whether a communication is privileged,” Justice Richard Aldrich wrote. “Rather, that is the responsibility of the court.”

    Costco’s appellate lawyers, partner David Kadue — who will argue the case — and staff attorney Ann Qushair of Seyfarth Shaw’s L.A. office, declined to comment. But in their briefs in Costco Wholesale Corp. v. Superior Court (Randall) , S163335, they argued that factual information clients give to lawyers has been held confidential and that state Evidence Code §915(a) prohibits judges from ordering the disclosure of privileged facts.

    “The privilege reflects the belief that its benefits justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence,” Qushair wrote. “Therefore, unlike the work-product doctrine and other qualified privileges, in which an opposing party’s need for the protected information may warrant disclosure, the attorney-client privilege ‘is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.’”

    In his answer brief , Lee Gordon, an associate in the Los Angeles office of Hagens Berman Sobol Shapiro, cited Chadbourne and other cases for the proposition that employee communications — such as those between Hensley and the Costco managers — aren’t generally privileged “where, as here, they concern the employee’s percipient observation of other workers.”

    Gordon also said Costco waived any privilege it might have had by asserting as an affirmative defense that it reasonably expected department managers to engage primarily in exempt work. “If a party puts its own knowledge directly at issue,” Gordon wrote, “then it cannot stand on the attorney-client privilege to preclude examination of what it actually knows.”

    Gordon declined to comment.

    The high court has 90 days after argument to release its opinion. http://www.law.com/jsp/PubArticle.jsp?id=1202433448706

    Reply
    #1694
  2. Andrew Weiss
    July 26, 2010 at 10:15 pm

    Dear Counsel,

    On behalf of A K Machinery Inc., we request your legal services and possible representation on a Debt Recovery matter involving A K Machinery Inc and a client in your jurisdiction.
    Our legal representative won’t be able to take on this matter since it is out of their jurisdiction.
    Do let us know if you are currently accepting new clients.We look forward to a prompt response from you.

    Thank you very much.

    Sincerely,
    Andrew Weiss
    A K Machinery Inc.
    821 E 73rd Avenue
    Denver, CO 80229

    Reply
    #7489

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