Andrew Barton Kenneth Borenstein Gerri Marin Trishia Medema and James Meythaler v. United States District Court for the Central District of California, Smithkline Beecham Corporation, Dba Glaxosmithkline, a Pennsylvania Corporation, Real Party in Interest

Citations: 410 F.3d 1104; 2005 U.S. App. LEXIS 10701Docket: 05-71086

Court: Court of Appeals for the Ninth Circuit; June 9, 2005; Federal Appellate Court

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A writ of mandamus has been granted to prevent the disclosure of communications between prospective clients and their lawyers in the case involving plaintiffs who sued SmithKline Beecham Corporation, alleging injury from the medication Paxil. The law firm representing the plaintiffs had posted an online questionnaire designed to gather information from potential class members and their loved ones, which did not explicitly establish an attorney-client relationship. The questionnaire was titled "PAXIL WITHDRAWAL LITIGATION INITIAL CONTACT" and emphasized that it was for information gathering, not legal representation. Respondents were instructed not to sign forms from GlaxoSmithKline requesting medical record authorizations and were required to acknowledge that submitting the questionnaire did not constitute a request for legal advice or the formation of an attorney-client relationship. Despite this, there exists ambiguity regarding the intent, as the firm aimed to gather information about potential clients while simultaneously avoiding liability for malpractice claims. The court has vacated the district court's order requiring the production of the questionnaire responses, highlighting the need to protect the confidentiality of communications between prospective clients and their attorneys.

The manufacturer requested the plaintiffs' questionnaires during discovery to compare them with the plaintiffs' claims and identify potential cross-examination material. The plaintiffs resisted production, citing attorney-client privilege. However, no privilege was claimed regarding medical disclosures, as the nature of their claims—damages from Paxil withdrawal—would render such information discoverable through interrogatories or depositions. The district court determined that attorney-client privilege did not apply, as a disclaimer indicated the communications were not confidential, and checking the "yes" box on the questionnaire waived the privilege. The court noted that under California law, pre-employment communications with an attorney are privileged, but the disclaimer stated that submitting the questionnaire did not constitute a request for legal advice or form an attorney-client relationship. As a result, the court ruled that the plaintiffs' attorneys could not claim privilege due to their own disclaimer of confidentiality.

The plaintiffs sought a writ of mandamus, arguing that once the information is disclosed, it cannot be retracted. The defendant opposed the writ, asserting that the disclaimers showed the plaintiffs did not expect confidentiality. The court emphasized that mandamus is an extraordinary remedy, typically denied even if the petitioner is correct on appeal. The "Bauman factors" were applied to assess whether to grant the writ: 

1. The petitioner lacks other means to achieve relief.
2. The petitioner faces irreparable damage.
3. The district court's order is legally erroneous.
4. The order reflects recurrent errors or disregard for rules.
5. The order presents significant new legal issues.

The first two factors were met, as once the questionnaires are disclosed, they cannot be retracted. However, this situation does not differentiate it from typical discovery disputes where interlocutory relief is not granted. There was no evidence supporting the fourth factor regarding persistent errors.

The third and fifth factors are critical in this case, particularly the fifth, which emphasizes the significance of the issue as "new and important." The situation is notable not only because there are four questionnaires currently assessed, but also due to the thousands more pending in this consolidated multidistrict litigation involving numerous plaintiffs. A key aspect of this case is the attorney-client privilege, which is essential to the adversarial legal system. The novelty arises from attorneys using the internet to gather detailed information from potential clients, a shift from the traditional in-person consultations that were standard before. This change was facilitated by the legal allowance for attorney advertising in the 1970s and the recent widespread adoption of the internet for such purposes.

The district court's order is deemed clearly erroneous as a matter of law. It first determined that the questionnaires were submitted "in the course of" an attorney-client relationship, thus typically protected under California's attorney-client privilege. However, the court then incorrectly assessed whether a disclaimer on the questionnaire constituted a waiver of this privilege. While the court suggested that the plaintiffs filled out the questionnaires to seek legal representation, which they did achieve, it is unclear if this statement was meant as a factual finding subject to review for clear error. Regardless of the court’s intent, the evidence indicates that the respondents were indeed trying to secure legal services, based on their responses, the detailed information provided regarding their conditions, and the context of the questionnaires linked to a Paxil class action.

Counterarguments citing the ambiguity of the questionnaire, disclaimers, and the law firm's intent to gather information rather than solicit clients were also considered. However, the ambiguity of the questionnaire should not penalize the plaintiffs, as their privilege is at stake. A potential client would likely interpret the law firm's online presence as a solicitation for legal representation. Therefore, it is reasonable to conclude that a considerable number of those who submitted questionnaires did so with the intent to retain the law firm, thus establishing an attorney-client relationship.

A statement indicating that a questionnaire is "confidential" is not necessary to protect it from disclosure under California law. Communications made during the lawyer-client relationship are presumed to be confidential, and the burden is on the opposing party, GlaxoSmithKline, to prove otherwise. The district court ruled that GlaxoSmithKline met this burden due to a disclaimer at the bottom of the questionnaire, which purportedly negated any attorney-client relationship. However, the court erred by interpreting this disclaimer as a waiver of confidentiality, as the questionnaire did not explicitly mention confidentiality or lack thereof. The ambiguous wording on the law firm's website could confuse clients, potentially leading to unnecessary legal proceedings. 

Under California law, client communications intended for legal services remain confidential even if made before an official attorney-client relationship is established. The definition of "client" includes those seeking legal advice or services, which can occur prior to formal representation. The questionnaire required submitters to acknowledge that they were not forming an attorney-client relationship but did not eliminate the possibility of seeking legal services. Thus, communications from prospective clients aiming to obtain legal services are protected under attorney-client privilege, regardless of whether they formally retain the lawyer. This principle was upheld in the Beery case, where the California Supreme Court recognized that preliminary consultations with the intent to retain a lawyer are covered by the privilege, even if no formal engagement occurs.

The privilege of confidentiality in preliminary consultations with lawyers is fundamental to ensuring that potential clients can discuss their issues without fear of disclosure, thereby facilitating honest communication. This privilege is maintained unless the lawyer has explicitly declined representation, which did not occur in this case. According to *People v. SpeeDee Oil Change Systems, Inc.*, the privilege applies when communications extend beyond initial contacts to acquiring confidential information. The court determined that the district court erred in ordering disclosure of a plaintiff's confidential communication to their lawyer, as allowing such access would undermine the integrity of the attorney-client privilege. While acknowledging that discrepancies between statements made to lawyers and at depositions could complicate case resolutions, the court emphasized that ethical duties of lawyers provide necessary safeguards against dishonesty. The ruling reinforces that the privilege remains intact despite technological changes in client communication methods. Ultimately, the court granted a writ of mandamus, vacating the district court's order that compelled disclosure of the plaintiffs' confidential questionnaires.

The district court has not certified a class for the Paxil litigation, although many cases have been consolidated for pretrial proceedings. Five plaintiffs, including four who completed a questionnaire, will proceed to trial first. A motion to stay an order related to the case was filed and granted, with arguments scheduled for May 2005. The district court's order compels the submission of questionnaires from the trial plaintiffs, aimed at gathering information about potential class members experiencing withdrawal symptoms from Paxil. The questionnaire clarifies that responses do not establish an attorney-client relationship and that any legal advice should be sought through a formal fee agreement with an attorney.

California law determines the privilege of these questionnaires under Federal Rule of Evidence 501. Several case citations underscore the application of California law in this context, including Spencer v. United States District Court, which discusses the implications of such privileges. The California Evidence Code is referenced to further clarify the legal standing of the questionnaires and related communications. Additionally, the document notes precedent regarding attorney advertising and professional conduct rules applicable in California.