Showdown at California Supreme Court over Waiver of Attorney-Client Privilege in Public Records after Inadvertent Disclosure
August 18, 2015
A recent decision by the First District Court of Appeal sets up a showdown over competing holdings on whether inadvertent production of attorney-client privileged public records under the Public Records Act waives the privilege.
On July 31, 2015, in Newark Unified School District v. Superior Court, the First District Court of Appeal held the answer is “No.” About seven months earlier, on December 10, 2014, in Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, the Second District Court of Appeal held the answer is “Yes.” The California Supreme Court granted review of the Ardon case on March 11, 2015 – 4 1/2 months before the Newark case was decided. As of this writing, no petition for reconsideration or for review by the Supreme Court has been filed in Newark, but it seems highly likely that, regardless of any further proceedings in Newark, the reasoning of both cases will be considered by the Supreme Court as it addresses Ardon.
The Public Records Act exempts from public release documents subject to privileges under the Evidence Code, including the attorney-client privilege. The showdown developing in Ardon and Newark ultimately results from a conflict between case law holding that inadvertent production of attorney-client privileged documents in discovery does not waive the privilege, and Government Code section 6254.5, a provision of the Public Records Act which states that disclosure to any member of the public of a record that is exempt from disclosure under the Public Record Act waives the exemption.
In Newark, the school district released documents in response to a Public Records Act request, but on the day it released the documents, the district discovered several hundred pages of released documents had not been reviewed to determine whether they were exempt from disclosure. That same evening, the district emailed all those who had been listed as recipients of the records, informing them of the inadvertent production and requesting their return. Return was refused on the ground that under Government Code section 6254.5, the disclosure of the records waived any applicable exemptions to disclosure of the documents. Eventually, the district identified well over a hundred of the released records as attorney-client privileged.
The trial court declined to order return of the documents, but the First District Court of Appeal disagreed. The court found that section 6254.5 could be read in two alternative reasonable ways, one supporting a finding of waiver through their disclosure by production in response to the Public Records Act request, and one not. While the word “disclosure” could refer to any communication of the documents (intentional or not), the court noted that, in a 1999 case that had been consistently followed since, a court required that disclosure resulting in a waiver of the attorney-client privilege be intentional.
Finding section 6254.5 ambiguous, the court turned to legislative history to interpret the statute. The court concluded that the statute was drafted to prevent selective disclosure of public records, under which records would be released to some members of the public but not others. The court concluded section 6254.5 “was intended to require agencies to maintain an applicable exemption as to all members of the public or not at all.” Since inadvertent release of documents was not an attempt at such selective release, there was no attempt to selectively disclose, as forbidden by section 6254.5.
The court also interpreted section 6254.5 not to apply to inadvertent disclosures to avoid a conflict with Evidence Code section 912, which concerns waiver of the attorney-client privilege. Observing that courts have held that inadvertent disclosure of attorney-client privileged documents does not waive the privilege, the court stated that a reading of section 6254.5 requiring a finding of waiver even if production of the records was inadvertent would cause the two statutes to potentially conflict. The court harmonized the two statutes by interpreting section 6254.5 not to apply to the inadvertent release of privileged documents. In making that decision, the court also relied upon the policy that the attorney-client privilege is a doctrine “fundamental to the administration of justice” which “should be regarded as sacred” and whose “waiver is disfavored.”
After rejecting a number of other secondary arguments, the court issued a writ of mandate requiring the superior court to vacate its prior order and revisit the case in light of the decision.
The Ardon case, which may not currently be cited by attorneys to courts because the California Supreme Court has granted review, went the other way. Ardon concerned records produced by the City of Los Angeles. In February 2013, the City produced 53 documents in response to a Public Records Act request, but in April counsel for the requesting party informed the City that three of the records appeared to be privileged. The City asserted inadvertent production and demanded return of the documents. Counsel for the requesting party asserted the privilege was waived. The City moved in a pending court action to compel return of the three documents and for disqualification of counsel. The trial court denied both motions and the appellate court upheld the ruling. As the school district would later argue in Newark, the City asserted the privilege was not waived because the three documents were inadvertently produced.
The Ardon court disagreed. The court found Public Records Act requests to be different from discovery in litigation, and that unlike the California Civil Discovery Act, the Public Records Act does not include mechanisms to seek return of documents after they are produced. Under section 6254.5, once documents are produced to one person requesting them, they must be disclosed to anyone who asks, regardless of whether their original production was inadvertent. Relying on the same legislative history on which Newark later relied, the court held that the City’s argument would require selective disclosure of the allegedly privileged documents to some members of the public but not others. The court found section 6254.5 to be unambiguous in requiring that “everything produced in a response to a [Public Records Act] request must be accessible to everyone except” where the Public Record Act required otherwise. Thus, Ardon held “that disclosures pursuant to the [Public Record Act] that are made inadvertently, by mistake or through excusable neglect are not exempted from the provisions of section 6254.5 that waive any privilege that would otherwise attach to the production.”
As of this writing, Ardon remains in the briefing phase at the California Supreme Court. The collision between Newark and Ardon is certain to be of interest to public agencies, those who utilize the Public Records Act to obtain documents from public agencies, and anyone interested in the reach and scope of the attorney-client privilege.