In California Oak Foundation v. County of Tehama, (— Cal.Rptr.3d —-, 2009 WL 1628460, 09 Cal. Daily Op. Serv. 7310, Cal.App. 3 Dist., June 11, 2009), a California Court of Appeal considered whether the attorney-client privilege or work-product privilege is either (1) abrogated by section 21167.6 of the California Environmental Quality Act (“CEQA”), or (2) waived when one party discloses the information to a codefendant in joint defense of a CEQA case. The Court of Appeal held that section 21167.6 does not abrogate the privilege and the privilege is also not waived when information is shared for joint defense of a case.
California Oak Foundation ("Foundation") sought a writ of administrative mandamus to overturn the County of Tehama's and Tehama County Board of Supervisors' approval of an environmental impact report ("EIR") and a project that includes commercial and residential development. The Foundation asked the trial court to compel the County of Tehama and Tehama County Board of Supervisors (collectively, "Tehama") to include four documents in the administrative record that were sent to Tehama by an outside law firm, which Tehama had retained to provide it with advice on CEQA compliance issues. The trial court denied the Foundation's request to discover the documents and ultimately denied its petition for writ of administrative mandamus.
The Court of Appeal held that the trial court did not err in refusing to compel Tehama to produce the documents requested by the Foundation. The court found that Tehama's claimed privilege in the documents was neither abrogated by section 21167.6 of CEQA nor waived when Tehama communicated the documents to the real parties in interest in the case.
The Foundation asserted, on appeal, that section 21167.6 of CEQA overrides Tehama's claim of privilege. Pursuant to section 21167.6, the record of administrative proceedings to review the actions of a public agency must include, in addition to other items not relevant here, the following items: (1) "All written evidence or correspondence submitted to, or transferred from, the respondent public agencies with respect to compliance of this division or with respect to the project;" and (2) "Any other written materials relevant to the respondent public agency's compliance with this division or to its decision on the merits of the project, including the initial study, any drafts of any environmental document . . . copies of studies or other documents relied upon in any environmental document prepared for the project . . . and all internal staff notes and memoranda related to the project . . . ." The Court of Appeal held that these portions of section 21167.6 do not abrogate the attorney-client privilege or the work product privilege. There is no clear intent by the Legislature expressed in section 21167.6 to supersede existing law regarding the attorney-client or work-product privilege.
The Foundation also claimed the attorney-client privilege was waived when Tehama shared the letters with counsel for the real parties in interest in this case. Tehama asserted that disclosure to the real parties in interest comes within the common interest exception. The court found that the common interest doctrine, also known as the nonwaiver doctrine, applies in the case in controversy.
Evidence Code section 912 provides that the attorney-client privilege is not waived where there is disclosure made in confidence of a communication and when that "disclosure is reasonably necessary for the accomplishment of the purpose for which the [attorney] was consulted." The attorney-client privilege extends to those communications "which are intended to be confidential, if they are made to attorneys, family members, business associates, or agents of the party or his attorneys on matters of joint concern when disclosure of the communication is reasonably necessary to further the interest of the litigant."
If an unnecessary third person is involved in the attorney-client communications, confidentiality is in fact destroyed. However, "involvement of third persons, to whom disclosure is reasonably necessary to further the purpose of the legal consultation preserves confidentiality of communication."
The court rejected the Foundation's argument that Tehama's communication to the real parties in interest was not reasonably necessary to accomplish the purpose for which Tehama consulted with outside counsel. "The purpose of achieving compliance with CEQA law, reasonably viewed, entails further purpose." This purpose includes the production of an EIR process and EIR documents that will withstand a legal challenge for noncompliance with CEQA. "Thus, disclosing the advice to a codefendant in the subsequent joint endeavor to defend the EIR in litigation can reasonably be said to constitute 'involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the [original] legal consultation.'"
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