A recent 9th circuit case, Barton v District Court, 2005 DJDAR 6720, held that attorneys trolling for clients on the internet by having individuals fill out questionnaires can protect the questionnaires from discovery by relying on the attorney client privilege. I think the Ninth circuit is wrong. There are special problems with mass tort, multiple plaintiff cases and form inquiries. These should be discoverable.
The Barton case arises from Paxil litigation in which large numbers of plaintiffs are suing SmithCline, Paxil’s manufacturer, claiming Paxil caused injuries. According to the Ninth circuit, instead of the “traditional” way of contacting lawyers by walking into their offices, these plaintiffs filled out Internet questionnaires.
This characterization of how clients are obtained is not “traditional,” it’s naïve to suggest that was ever the method in mass tort cases. Attorney websites for ever imaginable mass tort situation abound. Here are two typical examples. The Internet is full of them.
The Ninth Circuit correctly referred to the practice of “trolling for clients on the internet.” Some clients do meet their lawyers on the Internet and some come in to the office. In both cases, there is a period of time where, even if the attorney does not accept the case, confidential information is disclosed. Information conveyed during that period of time should be protected. However, that time should begin some time after intentionally ambiguous questionnaires are filled out.
A following post will develop the problems inherent in mass tort questionnaires and why they should not be privileged.
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