GOVERNMENT’S INADVERTENT RELEASE OF PRIVILEGED RECORDS DOES NOT WAIVE PRIVILEGE
August 09th, 2016/By Admin/In Newsletter
Government’s Inadvertent Release Of Privileged Records Does Not Waive Privilege
In Estuardo Ardon v. The City of Los Angeles, Estuardo Ardon served the City of Los Angeles with two requests for production of documents relating to a tax dispute. Plaintiff Ardon also served a subpoena for production of business records on the League of California Cities, of which the City is a member. The City produced some records, together with a privilege log listing 27 documents it was withholding on the basis that they were privileged. The Superior Court subsequently granted motions to quash filed by the City and the League of California Cities, finding certain documents to be privileged either under the attorney-client or attorney work product privilege.
Several years later, one of Ardon’s attorneys, acting pursuant to the Public Records Act (Government Code sections 6250 – 6276.48), requested that the City Administrative Officer provide copies of documents relating to the tax in dispute. In response, an assistant City administrative officer responded “[w]e have approximately 53 documents that pertain to your request” which will be provided upon payment of $6.95. Plaintiff paid the fee and the City administrative offices provided the documents.
The City learned that an error had occurred in the document production and requested that the documents be returned. The City also requested that the plaintiff agree not to rely on the documents in the subject lawsuit. However, the plaintiff contended the production waived any claim of privilege and therefore refused.
The City filed a motion for an order compelling the return of the privileged materials and to disqualify plaintiff’s counsel of record from the case. The Trial court denied the motion, concluding that the City’s production of the documents under the Public Records Act had waived any privilege it may have had. The City appealed.
The Court of Appeal agreed with the Trial court’s opinion that the production of documents waived any privilege and held that, because the documents had been disclosed by the City, the City was precluded from also denying their disclosure to anyone else who asks.
The City then petitioned the California Supreme Court for review.
The question before the California Supreme Court was whether the inadvertent release of privileged documents by a governmental entity waives the privilege, thus allowing the recipient of the documents to retain and use the documents and to disseminate them to others.
The California Supreme Court reviewed Government Code section 6254.5 as well as its legislative intent, and the ethical obligations of an attorney who receives privileged documents due to inadvertence. It held that a governmental entity’s inadvertent release of privileged documents under the Public Records Act does not waive the underlying privilege and reversed the ruling of the Appellate Court.
[This article is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]
