Government Liability Update

Prison Officer Did Not Violate Clearly-Established Law by Listening in on Portions of Prisoners' Phone Conversations with Civil Attorneys

In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights.  The prison unit the plaintiff was in did not allow prisoners to use wall phones.  The unit had a single portable phone, and each prisoner's use was limited to 20 minutes.  The phone did not have caller ID.  The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office.  The officer would then stop listening.  Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls.  The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established

The panel majority ruled that the officer was entitled to qualified immunity on the second prong:  the right was not clearly established.  The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights.  The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.

A judge wrote an opinion concurring in part and dissenting in part.  The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.

Police Department and City Attorney Violated Officer's Attorney-Client Privilege, but Recusal of City Attorney's Office Not Warranted

In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit.  The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation.  While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up.  An Internet news service referred to a police report that the service had obtained.  Internal Affairs investigated to determine if and how the news service had obtained a confidential police report.  IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination.  She admitted accessing the report.  She was asked about her communications with her attorney.  Her union representative objected based on attorney-client privilege.  The detective started answering.  The rep again objected and advised the officer not to answer.  The investigators stopped asking about the communications.  Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report.  She was ordered to return for a follow-up interview in eight days.  The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications.  At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present.  The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue.  She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it.  The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case.  After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.

The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege.  While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected.  The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications.  The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent.  The deputy should have confined his participation in the meeting to advising the investigators.  But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit.  Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.

Agency That Properly Withholds Documents from Production under the Public Records Act under Deliberative Privilege May Not Be Ordered to Produce Index of Withheld Documents That Reveals Confidential Information

In Labor and Workforce Development Agency v. Superior Court (Fowler Packing Co.), published January 8, 2018, the Third District Court of Appeal issued a writ of mandate directing a trial court to vacate an order directing the Agency to produce an index identifying the author, recipient, matter, and nature of exception for each document the Agency withheld from a California Public Records Act request.  The governor tasked the Agency with drafting and enacting a piece of legislation.  In preparing legislative proposals for the bill, the Agency communicated with Legislative Counsel.  It also sought and received confidential input from key stakeholders including representatives of business and labor.  A CPRA request asked for all public records from the Agency regarding the bill.  The agency withheld documents based on the Deliberative Privilege and attorney work protection.  The trial court permitted the Agency to withhold from disclosure documents protected by the Deliberative Process exemption and Evidence Code section 1040 (protecting confidential government communications).  But it directed the Agency to prepare the challenged index.  it also concluded that attorney work product protection did not apply to communications between the Agency and Legislative Counsel, concluding that the Counsel's client was the Governor, not the agency.

The appellate court held that the trial court erred in ordering that the authors and recipients of the exempt documents be revealed in the index.  The Deliberative Process exemption encourages open exchange of ideas before a legislative decision is made, in recognition that people will not openly share ideas if their ideas and involvement are revealed to the public.  By revealing the identities of the stakeholders who provided the information, the court's order would not serve the Deliberative Process exemption's purpose. The trial court also erred in determining attorney work product protection did not apply.  Because the Governor ordered the state Agency to take the lead in drafting and enacting the legislation, the attorney-client relationship between the Governor and Legislative Counsel extended to the Agency.

The Only Portions of Attorney Billing Invoices That May Be Subject to the California Public Records Act Are Fee Totals In Invoices from Long-Concluded Matters

In County of Los Angeles Board of Supervisors v. Superior Court (ACLU), ordered published June 22, 2017, the Second District Court of Appeal, Division 3, addressed this case on remand from the California Supreme Court.  The Supreme Court's opinion ruled that billing invoices from outside counsel to public entities in pending cases are exempt from the California Public Records Act, because every portion--including fee totals--communicate attorney-client information.  But it left open the possibility that fee totals from long-concluded matters may not be exempt from the CPRA.

On remand, the appellate court interpreted the Supreme Court's decision as holding that the only portion of an invoice from a long-concluded proceeding that may be subject to the CPRA is the fee total.  Whether the fee total communicates attorney-client information is a factual inquiry for the trial court.  The appellate court also rejected the document-seeker's argument that the trial court should examine the redactions of attorney-client information in camera to determine whether too much was cut out.  Absent party permission, courts cannot examine in camera information claimed to be protected by attorney-client information to determine if the privilege applies.

Outside Counsel's Billing Invoices for Ongoing and Active Litigation Not Subject to CPRA

In Los Angeles County Board of Supervisors v. Superior Court (ACLU), published December 29, 2016, a divided California Supreme Court reversed the lower appellate court's ruling that a public entity's outside counsel's billing invoices were categorically excluded from the California Public Records Act as attorney-client privileged communications.  The ACLU had sought invoices specifying the amount any outside firm had billed the petitioner county for defense in nine specified lawsuits.  The county agreed to produce redacted invoices from three lawsuits no longer pending, but declined to produce invoices in the six pending lawsuits.  Among its grounds was that they were privileged attorney-client communications that contained work product, were therefore privileged under the Evidence Code, and were therefore exempt from the CPRA under Government Code section 6254(k).  The appellate court issued a writ petition reversing the decision, and holding that all billing invoices are protected attorney-client communications.

The Supreme Court split 4-3 on the question of whether the invoices were protected from the CPRA.  The majority held that the contents of an attorney's invoice to a client are privileged only if they either communicate information for the purpose of legal consultation, or risk exposing information that was communicated for such a purpose. The majority further held that the latter category includes any information in any invoice that reflects work in active and ongoing litigation.  The majority reasoned that invoices in themselves are not protected communications, because they are submitted for the purpose of getting paid rather than for purposes that are the "heartland" of attorney-client privilege: information conveyed for the purpose of legal representation.  But they can contain information conveyed for that purpose.  Because invoices in ongoing and pending litigation pose too great a risk of disclosing the substance of legal consultation and strategy.  But information such as cumulative totals of billing for long-concluded litigation pose less of a danger of disclosing the substance of legal consultation.

The dissent opined that the attorney-client privilege applies to all attorney-client communications in the course of a representation, regardless of content; and that the passage of time does not affect the privilege.

 

Inadvertent Disclosure of Privileged Document in Response to California Public Records Act Request Does Not Waive Privilege

In Ardon v. City of Los Angeles, published March 17, 2016, the California Supreme Court reversed a decision by the lower appellate court, and resolved a dispute between the lower appellate courts (discussed in earlier posts in this blog) over whether a public entity's inadvertent disclosure of a privileged document in response to a California Public Records Act Request waives the privilege, allowing the recipient to keep and use the documents and disseminate them to others.  The issue turned on interpretation of Government Code section 6254.5, part of the CPRA, which generally provides that "disclosure" of a public record waives any privilege.  After examining the statute, its history, and the law on inadvertent disclosures in litigation, the Supreme Court interpreted "disclosure" to refer only to an intentional, voluntary and knowing disclosure.  The statute's intent is to forbid public entities from intentionally disclosing a record to one person who requests it, and then refusing to disclose it to another.  But it does not apply to inadvertent disclosures.  

Here, the records the city disclosed to the attorney for a plaintiff suing the city had been withheld from discovery in the litigation, and listed in a privilege log.  These facts indicated that the disclosure was inadvertent.

The court ordered published another case on the subject on which it had granted review, Newark Unified School Dist. v. Superior Court (July 31, 2015, A142963) __ Cal.App.4th __, __, [pp. 11-12]), review granted Oct. 14, 2015, S229112, ordered pub. Mar. 17, 2016.

Under California Public Records Act, Person May Seek Production of Documents Person Already Has; Public Interest in Response to Whistleblower Complaint Outweighs Privacy Rights in Records

In Caldecott v. Superior Court (Newport-Mesa School Dist.), published December 21, 2015, the Fourth District Court of Appeal, Division 3, issued a writ reversing a trial court's decision denying production of documents under the California Public Records Act.  The petitioner was the former executive director of human resources for the real party school district.  While he held that position, the petitioner filed a complaint against the district superintendent.  The petitioner alleged that the complaint alleged that the superintendent created a hostile work environment, and also alleged improprieties with money.  The district alleged that the complaint discussed only personnel matters. The school board responded in writing that it would take no action on the complaint.  Shortly afterward, the superintendent terminated the petitioner's employment, and the school board approved the action.  The petitioner sought production of the documents under the CPRA.   The trial court denied the petitioner's writ petition, on the ground that the petitioner already had the documents.

The appellate court held that the fact the petitioner already had the documents was not a ground for denying the request.  The motive of a person requesting documents under the CPRA is irrelevant.  Further, the petitioner sought the documents so that he could disseminate them without concern that the district would object.  The appellate court ruled that the documents were personnel documents, requiring the court to balance the privacy interest in the documents against the public interest in their disclosure.  Since the documents concerned allegations of conduct by a high-ranking official, the appellate court (after an in camera review) determined that the public interest in them outweighed privacy.  The court overruled the official information privilege objection to their production, ruling that production would not affect internal deliberation.  It directed the trial court, on remand, to review the documents for attorney-client privileged matters, which would not be subject to production.  It awarded the petitioner his attorney fees.

Attorneys' Billing to Public Entities Is Not Subject to the California Public Records Act

In County of Los Angeles Board of Supervisors v. Superior Court (ACLU of Southern California), published April 13, 2015, the Second District Court of Appeal, Division 3, issued a writ of mandate reversing a trial court decision requiring the petitioner county to produce to real party ACLU, under the California Public Records Act, billing invoices from law firms representing the county in lawsuits brought by county jail inmates alleging jail violence.  Some of the invoices did not relate to ongoing litigation, so that exception to the CPRA did not apply.  The appellate court therefore analyzed whether the CPRA exception for privileged documents.  That required the court to address the hitherto undecided question of whether billing invoices were attorney-client communications that were privileged in their entirety.  The court determined that they were; because they were communications provided in the course of the attorney-client relationship, related to ongoing representation, they were protected regardless of their content.  The court declined to address whether the information could be obtained from other, non-privileged sources.

Inadvertent Production of Privileged Document to Litigant's Attorney Via Public Records Act Request Waives the Privilege

In Ardon v. City of Los Angeles, published December 10, 2014, the Second District Court of Appeal, Division 6, affirmed a trial court decision denying the defendant city's motion to compel the plaintiff to return privileged documents the city turned over to the plaintiff's counsel in response to a California Public Records Act request, and to disqualify the plaintiff's counsel.  The plaintiff had sued the city alleging that a telephone users' tax was improper.  The plaintiff's attorney made a Public Records Act request for documents relating to the subject matter of the complaint.  The attorney informed the city's attorneys that through the request she had obtained documents that the city had listed on a privilege log produced during discovery.  The city stated that the documents were privileged, and had been inadvertently produced.  The plaintiff's attorney refused to return the documents.

The appellate court concluded that the rules that govern inadvertent production of documents during discovery in a lawsuit do not govern production in response to a Public Records Act request.  Under Government Code sections 6254 and 6254.5, although privileged documents need not be produced in response to a Public Records Act request, production of privileged documents waives any privilege.  The Act does not contain any exception for inadvertent disclosure, and neither the statutory language nor the legislative history supports any implied exception for such disclosure.  Further, since the law forbids selective withholding, a public entity may not produce a privileged document to one person and then refuse to produce it to another on the ground that the document is privileged.  The plaintiff's counsel did not violate the rules of professional conduct by making the request.

City Charter Establishing Attorney-Client Relationship with City Attorney Supersedes Ordinance Calling for Disclosure of Attorney-Client Communications

In St. Croix v. Superior Court (Grossman), published July 28, 2014, the First District Court of Appeal, Division 1, issued a writ of mandate directing a trial court to vacate its own writ of mandate directing the San Francisco Ethics Commission to disclose written communications with the San Francisco city attorney under the California Public Records Act.  The person who requested the records argued that the San Francisco Sunshine Ordinance required disclosure of the communications, regardless of privilege.  The court ruled that because the city charter created an attorney-client relationship between the city attorney and city commissions, incorporated the state law attorney-client privilege for written communications between the city attorney and his or her clients.  A charter city's ordinance cannot contravene its charter.  To the extent the ordinance purports to compel disclosure of attorney-client privileged materials, it conflicts with the charter.  Because the California Public Records Act excludes production of attorney-client privileged materials, the trial court erred in ordering disclosure of those documents.