Update: California Supreme Court Holds Inadvertent Production of Attorney-Client Privileged Documents under a Public Records Act Request Does Not Waive the Privilege
March 18, 2016
In a 7-0 decision, the California Supreme Court ruled on March 17, 2016, in Ardon v. City of Los Angeles (S223876), that inadvertent production of attorney-client privileged documents by a public agency in response to a Public Records Act request does not waive the attorney-client privilege. This decision resolves the conflict between two California Court of Appeals cases discussed in a Legal Alert published August 18, 2015. On March 17, 2016, the court also ordered publication of the other of those two cases, Newark Unified School Dist. v. Superior Court.
The Supreme Court reversed the appellate court’s determination that finding inadvertent disclosure did not waive the attorney-client privilege would permit a public agency to selectively disclose documents in violation of Government Code section 6254.5. The court determined disclosure that would constitute a waiver of the privilege involved some measure of choice and deliberation on the part of the holder of the privilege, which is not present in an inadvertent disclosure. In fact, the court expressed concern that clients not be fearful that an inadvertent waiver of privileged information would result in waiver, and recognized that in modern litigation inadvertent disclosure may occur in the context of production of massive numbers of documents. The court found no reason to treat inadvertent disclosure differently in the contexts of responding to discovery and responding to a Public Records Act request.
The court agreed with the court in Newark that the City of Los Angeles was not seeking to selectively disclose documents. Instead, the City of Los Angeles sought to prevent any disclosure from occurring. An inadvertent disclosure of documents is not selective because an inadvertent disclosure is accidental, not intentional, reflecting no effort to disclose the documents to some members of the public but not others.
After discussing numerous exemptions from disclosure designed to protect confidentiality included in the Public Records Act, the Supreme Court found it unlikely the Legislature would “enact a statutory scheme that would prevent government agencies from minimizing the damage caused by the inadvertent disclosure of private and confidential information” or “adopt a rule that inadvertent disclosure requires confidential information to be made generally available to the public.” Instead, the Supreme Court concluded “that, in enacting section 6254.5, the Legislature intended to permit state and local agencies to waive an exemption by making a voluntary and knowing disclosure, while prohibiting them from selectively disclosing the records to one member of the public but not others.” The court also concluded that section 6254.5 does not apply to inadvertent disclosures.