In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that the prosecution has a duty under the Fourteenth Amendment’s due process clause to disclose evidence to a criminal defendant.   The former Chief Executive Officer of IAR Systems Software, Inc. invoked this right after the San Mateo District Attorney charged him with felony embezzlement.  The District Attorney charged the defendant just days before the start of the defendant’s trial in a civil lawsuit brought by his erstwhile employer.  In an interesting twist, the defendant argued that the law firm representing his former employer was part of the criminal “prosecution team” and hence required under Brady to disclose any material, exculpatory evidence in its position.  The trial court agreed based on (i) email correspondence between the DA’s office and the law firm in which the DA requested case citations; (ii) correspondence between the firm and a detective in which the firm asked for a list of crimes that would likely be charged to the defendant so that the law firm could explore the elements in an upcoming deposition; and (iii) communications regarding the DA’s need, but inability to pay, a forensic accountant.  The trial court declined to rule on whether the attorney-client privilege or work product doctrine overrode the obligation to disclose under Brady.

IAR Systems Software, Inc. v. Superior Court (Shehayed), 2017 Cal. App. LEXIS 512 (Cal. Ct. App. 2017).  Noting that there is “no published decision in California or elsewhere holding that a private party that is also a crime victim qualifies as a member of the prosecution team for purposes of Brady”, the Court declined to hold that crime victims and their attorneys may cannot as a matter of law be deemed part of the prosecution team for purposes of Brady.  Instead, the Court framed the question as “whether the prosecution has exercised such a degree of control over the nongovernmental actor or witness that the actor or witness’s actions should be deemed to be those of the prosecution . . .”.

Although the Court of Appeal declined to impose Brady obligations directly on the corporation’s attorney in this case, its decision to review the court’s factual findings creates the possibility that attorneys for crime victims will unwittingly become part of the prosecution’s team.