RECENT DISQUALIFICATION PRECEDENT RAISES INTERESTING QUESTIONS ABOUT COMPUTER ACCESS AND DATA RIGHTS
The California Court of Appeal’s March decision in Militello v. VFARM 1509, 89 Cal. App. 5th 602 (2023) holds that if a client "improperly obtained (or maintained) possession of written or digital copies of an adverse party’s confidential information and provided them to counsel for use in litigation," the attorney may be disqualified from serving as trial counsel if they "read purloined documents any more closely than is necessary to determine" that they should not be used.1 Militello involved company emails protected by the spousal communications privilege that one co-owner used as evidence against another in litigation over their jointly owned business. Militello is a significant development in California’s disqualification jurisprudence, as it resolves an apparent conflict between prior Court of Appeals decisions on the question of whether disqualification is ever appropriate where a lawyer receives the adverse party’s privileged communications from their own client."2
But Militello also raises a bunch of other interesting questions.
To what extent are email communications protected by the spousal communication privilege if the communications constitute the conduct of the corporation’s affairs? Might disqualification have been proper if the subject materials were merely confidential, rather than privileged? In a dispute between joint owners of a corporation, who has the authority to grant or deny permission to use corporate systems and data?