California law recognizes just how important the relationship between a person seeking a divorce and his or her attorney is. Among other protections, the law generally shields all communications between client and lawyer under the attorney-client privilege. The state’s First District Court of Appeals recently took on one of the many situations in which the privilege may come up during a divorce case.
Husband and Wife separated in July 2011, and Wife filed for divorce less than one month later. The relationship appears to have been on the rocks for some time before they couple split. Wife met with an attorney to discuss her options in early July 2011. At the lawyer’s request, she filled out a detailed intake form concerning the marriage and Wife’s position on various issues. Wife downloaded the completed form to an unused USB flash drive stick that she said she found in the couple’s garage. Wife ultimately went with another lawyer, but she continued to use the stick to retain records of communications with the new attorney.
Wife said she left the couple’s home in September 2011 while seeking a restraining order against Husband. She said she returned four days later to find that Husband had rummaged through her belongings and that the flash drive stick – which she’d hidden in a brown bag and placed under some clothes – was missing. As the divorce litigation moved forward, Husband produced Wife’s completed intake form as one piece of evidence that he intended to rely on at trial.
Although Wife argued that the information on the USB stick was protected by the attorney-client privilege, Husband refused to return or destroy it. He claimed that the stick had his own business information on it and that it had either been taken from or had fallen out of his briefcase.
The trial court eventually ordered Husband to turn over the stick, finding that it was privileged. The court also ordered Husband to pay $2,100 in sanctions for refusing to turn the stick over sooner. “It isn’t whether the USB stick had your information or not and whether you found it in a drawer or whether it was in your brief case,” the trial court said. “The question is really was this information that clearly was between her and her attorney and part of her putting her case together.”
Affirming the decision on appeal, the First District said the trial court didn’t abuse its discretion in ordering the sanction. “By its ruling here, the trial court found husband’s position regarding the non-privileged status of the [intake form] was not substantially justified,” the Court said. “We see no basis to reverse the trial court’s ruling on this ground.”
If you’re considering seeking a divorce in California, contact San Jose family law lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve child support and other issues on optimal terms. Call our office at (408)297-0700 to schedule a consultation.
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