On March 17, 2016 the California Supreme Court resolved an ongoing conflict among California courts, regarding the effect of an inadvertent disclosure of privileged documents in response to a California Public Records Act ("CPRA") request. In Ardon v. City of Los Angeles (Cal., Mar. 17, 2016, No. S223876) 2016 WL 1062109, the California Supreme Court determined that a public entity's inadvertent release of privileged documents under the CPRA does not result in a waiver of that privilege.
Summary of Law
The Evidence Code allows certain parties to withhold confidential communications such as communications between a lawyer and his or her client. In the context of litigation discovery, the inadvertent disclosure of documents protected by one or more of these privileges does not constitute a waiver of the privilege and the Civil Discovery Act contains provisions for the mandatory return of such documents. (Evid. Code, § 912; Code of Civ. Proc., § 2031.295.)
Likewise, the CPRA provides that privileged documents are exempt from disclosure. (Gov. Code, § 6254 (k).) However, under Government Code section 6254.5, the disclosure of a privileged document converts the document into a public record. In Ardon, the California Supreme Court addressed the question of whether Section 6254.5 only applies to intentional disclosure, or whether, unlike in civil discovery, an inadvertent disclosure would also waive any privilege.
This issue was previously addressed in this case by the California Court of Appeal, Second Appellate District, which delivered a sobering opinion to public agencies in 2014. In its opinion, Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, rev'd, (Cal., Mar. 17, 2016, No. S223876) 2016 WL 1062109, the Second District had held that inadvertent disclosure of attorney-client privileged materials effected a waiver of privilege pursuant to Government Code section 6254.2.
However, less than a year later, the First District came to the opposite conclusion in Newark Unified School District v. Superior Court, (July 31, 2015) ___ Cal.App.4th ___, holding that documents are not necessarily "disclosed" pursuant to Section 6254.5 when a public agency inadvertently releases documents subject to the attorney-client and attorney work product privileges. The First District had reasoned that information discovered by eavesdropping would not be considered a "disclosure" under the CPRA, and that only intentionally disclosed information could effect a waiver. However, the Court also found that if the privileged documents had been disbursed to third-parties, the confidentiality of the documents would be permanently impaired and thus the privilege would be moot.
The same day the Supreme Court issued its opinion reversing the Second District's decision in Ardon, it also issued an opinion affirming the First District's decision, in Newark; holding that inadvertently disclosed privileged documents retain their privileged status and may be recalled by the public agency. In Newark, the Supreme Court reaffirmed that "a privilege is not waived in the absence of a manifest intent to waive."
In affirming the existence of privilege even in the face of inadvertent disclosure, the Supreme Court in Ardon noted the practical consequences of adopting a contrary position. “[T]he practical problem of inadvertent disclosure in the context of today's reality [is] that document production may involve massive numbers of documents. A contrary holding could severely disrupt the discovery process." As amicus curiae the Product Liability Advisory Council, Inc., argued, "even apart from the inadvertent disclosure problem, the party responding to a request for mass production must engage in a laborious, time consuming process. If the document producer is confronted with the additional prospect that any privileged documents inadvertently produced will become fair game for the opposition, the minute screening and re-screening that inevitably would follow not only would add enormously to that burden but would slow the pace of discovery to a degree sharply at odds with the general goal of expediting litigation." (Ardon, citing Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807.) The Supreme Court strongly rejected any type of “gotcha” theory of waiver, in which an underlying accidental disclosure in a document production would become the equivalent of a knowing waiver of privilege.
The High Court further stated that that there was no reason to construe Government Code section 6254.5 differently than Evidence Code section 912 in regard to inadvertent disclosure of privileged materials. The Court found 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. But, considering the language of Section 6254.5 in its proper context, the Court concluded that Section 6254.5 does not apply to inadvertent disclosures.
In its opinion, the Supreme Court cautioned "that the inadvertent release of exempt documents does not waive the exemption under the Public Records Act [and] must not be construed as an invitation for agencies to recast, at their option, any past disclosures as inadvertent so that a privilege can be reasserted subsequently." The holding is applicable only to truly inadvertent disclosures and may not be abused to permit the type of selective disclosure Section 6254.5 prohibits. The Court went on to note that the agency's own characterization of its intent is not dispositive, just as it is not dispositive under the law of privilege.
What This Means To You
Though the new Supreme Court decisions in Ardon and Newark will be a relief for public agency counsel, the best course of action is still to prevent inadvertent disclosure in the first instance. Public agencies and their attorneys should still engage in best practices for preventing the disclosure of privileged agency documents by taking the following steps: 1) mark all privileged documents privileged and confidential; 2) file all privileged and confidential documents in a separate folder so that they are easily separated from other documents in responding to demands for inspection under the PRA; and 3) carefully review all documents, prior to disclosure, when responding to PRA requests.
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.