Here is a case from California in which plaintiff’s attorney came into possession of a set of notes made by defendant’s attorney concerning the expert and his testimony.  Even though the notes inadvertently came into plaintiff’s possession, the attorney has been taken off the case by the court.

If things go wrong from here, will there be a legal malpractice case to follow?

"Taking advantage of an opposing lawyer’s privileged documents, even if they’re accidentally obtained, is a major no-no, the California Supreme Court ruled Thursday.

To drive its point home in the anxiously awaited ethics case, the court unanimously upheld El Segundo, Calif., lawyer Raymond Johnson’s disqualification from an automobile rollover case for using his opponent’s notes to impeach expert witnesses.

"An attorney in these circumstances may not read a document any more closely than is necessary to ascertain that it is privileged," Justice Carol Corrigan wrote. "Once it becomes apparent that the content is privileged, counsel must immediately notify opposing counsel and try to resolve the situation."

Johnson represented a family who sued Mitsubishi Motors Corp., Mitsubishi Motor Sales of America and the California Department of Transportation following the 1998 rollover crash of a Mitsubishi Montero sport utility vehicle. Eleven-year-old Denise Rico died in the accident and her 18-year-old sister, Zerlene, was partially paralyzed.

Before the case reached trial, Johnson came into the possession of opposing attorney James Yukevich’s notes concerning a meeting with expert witnesses. Johnson copied the 12-page document, prepared by one of Yukevich’s paralegals, and used it during a subsequent deposition to discredit Yukevich’s experts.

Johnson claims the notes were given to him accidentally by a court reporter, while Yukevich insists they were illicitly taken from his co-counsel’s briefcase during an earlier deposition.

San Bernardino County Superior Court Judge Ben Kayashima eventually ruled that Johnson obtained the document inadvertently. But he still disqualified Johnson and his legal team from the case for breaching his ethical duties by using another lawyer’s confidential work product. "