Government Liability Update

E-mail from Attorney Representing Public Agency to Agency's Employee Was Covered by Attorney-Client Privilege

In Johnson v. California Department of Transportation, published March 17, 2025, the Third District Court of Appeal affirmed a trial court order disqualifying a plaintiff's attorney and experts.  The plaintiff, an employee of the defendant agency, sued the agency for claims arising out of the employment.  While the suit was pending, an attorney representing the agency in the action sent an e-mail to the plaintiff's supervisor.  The supervisor was not a named party in the litigation.  The e-mail stated that it was a privileged attorney-client communication, and/or was covered by the attorney work-product doctrine.  The e-mail requested that if the reader was not the intended recipient, the reader contact the send and destroy all copies of the original message.  The  supervisor took a photo of the e-mail, and sent it to the plaintiff.  The plaintiff gave it to his attorney.  The plaintiff's attorney e-mailed the agency's attorney and advised him of the image of the e-mail.  The plaintiff's attorney asserted the e-mail was intentionally disclosed, and so any privilege was waived.  The agency's attorney asserted the e-mail was privileged, and requested that the plaintiff and his attorney delete or destroy the e-mail.  The agency's attorney also asserted that the supervisor did not have the authority to waive attorney-client privilege on behalf of the agency.  During meeting and conferring, the plaintiff's attorney wrote to the defense attorney that the e-mail would be provided to the plaintiff's retained experts and would be offered into evidence at trial.  The plaintiff's attorney shared the e-mail with the plaintiff's experts.  The agency moved for a protective order.  The trial court determined that the e-mail was privileged, and that the agency had not waived the privilege.  It prohibited the plaintiff and his attorney from any further dissemination of the e-mail, and ordered them to destroy or return all copies and file a compliance declaration stating they had done so.  The plaintiff and attorney eventually filed declarations stating they had complied with the order, but also stating that the attorney had discussed the e-mail with several individuals on an ongoing basis as of the declaration's date.  The attorney later asserted that the protective order did not bar verbal communication about the e-mail and its contents, and that the parties could testify about the e-mail.  The agency moved to disqualify the plaintiff's attorney and the experts.  The trial court concluded that because the plaintiff's counsel had used the e-mail as a component of the case he was preparing against the agency, his continued participation would cause prejudice.  It granted the motion.

The appellate court concluded that the trial court's findings were supported by substantial evidence and the law.  Public entities can claim the attorney-client privilege.  Attorney communications with agents and employees of public entities may be covered by the privilege.  Whether the attorney-client privilege applies to a communication is a question of fact if the evidence conflicts.  The trial court concluded that the e-mail was privileged because the sender was an attorney representing the agency, the e-mail involved legal advice or information, and the nature of the relationship between the attorney and the supervisor was that of an agency attorney obtaining information relevant to litigation from an agency employee. Substantial evidence supports these determinations.  The e-mail stated it was confidential.  And the only relationship between the attorney and the supervisors stemmed from the attorney's need to defend his client in litigation brought by one of the supervisor's supervisees.  The plaintiff failed to rebut the showing of privilege.  Lower-level employees may be covered by the privilege.  The supervisor's disclosure did not waive the privilege.  The privilege was held by the agency, as represented by its management.  The supervisor did not fall within this group.  There is no evidence the agency authorized the supervisor to disclose the e-mail.  The plaintiff failed to show waiver through delay in asserting the privilege or seeking the protective order.  Based on the attorney's conduct in continuing to use the e-mail as part of the case, disqualification was appropriate.

Agency Has Burden of Establishing Documents Demanded in Public Records Request Are Exempt from Production

In Getz v. Superior Court (County of El Dorado), published December 13, 2021, a divided panel of the Third District Court of Appeal reversed in part and affirmed in part a trial court decision denying writ relief in a California Public Records Act case.  The petitioner requested from the real party county records between the county and any other party concerning a planned development.  The county produced an index of responsive documents, including e-mails, on a CD with hyperlinks to the texts of the e-mails or documents.  Believing he had not received all of the documents he sought, the petitioner submitted a new CPRA request, seeking all e-mails between any county department and anyone at four e-mail domains over a five-year period.  The county notified the petitioner it had located approximately 47,000 responsive e-mails, of which over 42,000 were newly identified.  The county asked the petitioner to refine his request to allow for a more focused search and to allow the county to review the responsive records before production.  The petitioner declined.  One of the domains was for a law office with which the county counsel worked.  The county produced an index of the 42,000 new emails (without hyperlinks) and asked the petitioner to narrow his focus.  He declined.  The petitioner also submitted a request to the county for all records in connection with the District Attorney's efforts to review an alleged misdemeanor by the petitioner.  The petitioner had never been charged, and the statute of limitations had run out.  The county declined to produce the documents, asserting they were exempt from production under Government Code section 6254(f) as law enforcement investigatory files and records.  The petitioner sought a writ compelling the county to respond further to his CPRA requests for the e-mails and investigatory files.  The trial court denied the petition as to the e-mail request on the ground the request was overbroad.  It denied writ relief as to the investigatory files on the ground they were exempt.

The appellate court majority ruled that the trial court's finding that the e-mail request was overbroad and burdensome was not supported by substantial evidence.  Because the county had identified the responsive documents and indexed them, the evidence established that the records could be located with reasonable effort and the volume was not unmanageable.  Although the county contended that it would have to search the e-mails to confirm they were public records, there was no evidence before the trial court that the county's e-mail exchanges with the requested domains would contain anything but information regarding the county's business with the entities at those domains.  The county did not provide evidence that the e-mails would contain personal information.  Further, the county had failed to provide sufficient evidence to require review of the e-mails to determine whether any exemptions from the CPRA would apply.  Although the county submitted evidence that e-mails exchanged with the law firm might contain attorney-client information protected under the common interest doctrine, that did not support a claimed need to review all of the indexed e-mails--only those relating to the litigation at issue, which might be identified by sender, recipient, and subject matter line.  The county must make some showing that exempt or privileged information exists in the records requested, especially where that seems unlikely.  Public agencies can reduce the potential burden by identifying and segregating potentially exempt records when they are created.

One justice dissented from this holding.  He opined that the burden on the county clearly outweighed the public interest underlying the request.

The court unanimously affirmed the trial court's ruling that the investigatory documents were exempt from disclosure, since the exemption applies after the investigation has closed.

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.