By Eugene Park*
(2016) _ Cal.4th _ (Cal. Supreme Court, filed Mar. 17, 2016); (2015) 239 Cal.App.4th 33 (Court of Appeal, First Dist., ordered pub. Mar. 17, 2016).
California Supreme Court provides final holding that inadvertent release of documents protected by attorney-client or attorney work product privileges in response to Public Records Act request does not constitute waiver of those privileges.
On March 17, 2016, a unanimous California Supreme Court resolved a split between the First and Second Appellate Districts regarding whether inadvertent disclosure of privileged documents under the California Public Records Act ("CPRA") can waive those privileges. The Court held that such inadvertent disclosures do not waive privilege, thereby reversing the Second Appellate District in Ardon v. City of Los Angeles (2014) 232 Cal. App.4th 175 and ordering published the First Appellate District's opinion in Newark Unified School Dist. v. Superior Court (2015) 239 Cal.App.4th 33.
Both appellate decisions stemmed from the stuff of many attorneys' nightmares: the belated realization that privileged documents were publicly disclosed within an otherwise banal document production. In April 2013, counsel for the City of Los Angeles learned that a recent disclosure under the CPRA by the City's administrative office included documents that had years earlier been requested in discovery for a class action lawsuit against the City but had successfully been quashed under the protection of the attorney-client or attorney work product privileges. The City requested that the privileged documents be returned, but the CPRA requester, who happened to be plaintiff's counsel in the class action against the City, refused. In a similar mishap occurring over a year later and hundreds of miles north of Los Angeles, the superintendent of the Newark Unified School District realized that the District's disclosure in response to a CPRA request contained several hundred pages of documents that had not been reviewed for privilege. As did Los Angeles, Newark USD requested in vain that the documents be returned.
In both cases, the recipients of the privileged documents argued that the agencies' actions, even if inadvertent, were a "disclosure" under Government Code section 6254.5, which provides that a public disclosure of a document constitutes a waiver of any applicable exemption or privilege.
In settling this split in Ardon, the Supreme Court recognized that the waiver provisions in Section 6254.5 were ambiguous as to whether they applied to inadvertent disclosures, and therefore the Court sought to resolve the ambiguity by analyzing the CPRA's statutory context, legislative history, and the legal standards underpinning inadvertent disclosures during litigation. First, the Court noted that the CPRA's primary list of exceptions, codified in Section 6254, illustrated the Legislature's attempts to protect public agencies' ability to safeguard truly confidential information. Second, the Court analyzed Section 6254.5, the section relied upon by plaintiff to argue for waiver, and held that this section also reflected the Legislature's emphasis on protecting confidentiality and circumscribed an agency's ability to release exempt documents, thereby implying that actions outside of these enumerated release options (such as inadvertent disclosures) were not intended to constitute a waiver. Third, the Court held the legislative history of Section 6254.5 illustrated it was intended to codify case law restricting agencies' ability to selectively disclose to some but not other members of the public, but was not intended to apply to inadvertent disclosures, which by definition did not involve a "selection" at all. Finally, the Court noted that analogous provisions in Evidence Code section 912 regarding waiver of the attorney-client privilege in litigation do not apply to inadvertent disclosures.
The Court recognized the general rule of construction under the California Constitution that statutes should be construed to further public access. But this rule of construction could not overcome the statutory text, legislative history, and analogous statutory provisions, all of which indicated that evidentiary privileges could not be waived through mere inadvertence. The Court's holding accorded with the reality of ever-increasing CPRA requests and the high risk of delayed responses if agencies were paralyzed with concerns about waiving privileges through inadvertent disclosures.
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(2016)___Cal.App.4th___(Court of...
