Legal Alerts Mar 16, 2015

California Supreme Court to Hear PRA Case on Inadvertent or Accidental Disclosure of Privileged Reco

Case Involves Attorney-Client Privileged Documents Released During Litigation

California Supreme Court to Hear PRA Case on Inadvertent or Accidental Disclosure of Privileged Reco

The California Supreme Court has granted review of a controversial Public Records Act ruling and will decide whether the well-recognized protection for attorney-client privileged documents inadvertently disclosed during the civil litigation discovery process will extend to the PRA. Its March 12 order granting review means the lower court ruling that accidental disclosure waives privilege is no longer the law.

The 2nd District Court of Appeal, Division 6 in Ventura held in December that even accidental or inadvertent disclosure of privileged records in response to a PRA request waives any claim of exemption under the Act. In Ardon v. City of Los Angeles, the City inadvertently disclosed attorney-client privileged documents during a production of records in response to a request under the PRA made by an attorney representing Ardon as part of Ardon’s lawsuit against the City over a telephone users tax. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records.

The City had argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege. That argument was supported by case law that protects the privilege for documents inadvertently disclosed during the civil litigation discovery process. However, the appellate court disagreed and drew a clear distinction between the civil litigation discovery process and the PRA.

If you have questions about this opinion or how it will affect your municipality or agency, please contact the attorney author of this legal alert listed at right in the firm’s Public Policy and Ethics Compliance practice group or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @bbklaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Continue Reading