In Garcia v. Superior Court of Orange County, (— Cal.Rptr.3d —, 2007 WL 2274433, Cal., Aug. 9, 2007), the California Supreme Court considered whether a defendant in a criminal case seeking law enforcement personnel records by a Pitchess motion may file the supporting declaration under seal on the grounds that the declaration contains information protected by the attorney-client privilege.
The Court ruled that Pitchess declarations may be filed under seal only in limited circumstances and only if a trial court first finds that an under-seal filing is necessary to avoid revealing privileged information.
Facts
Jose Antonio Garcia, on trial for becoming involved in an altercation with officers while being booked in the Santa Ana (“City”) jail, brought a Pitchess motion for discovery of law enforcement personnel records. The procedure is named for the case that spawned it, Pitchess v. Superior Court (1974) 11 Cal.3d 531, and is conducted under procedures set forth in Evidence Code sections 1043-1047.
Garcia’s counsel filed his declaration in support of the motion under seal because Garcia said it contained confidential information protected by the attorney-client privilege. The City objected to the sealed declaration and contended that it could not adequately respond to the motion because the City Attorney had not received a copy of the declaration. The trial judge reviewed the sealed declaration in chambers and concluded that certain portions were protected by the attorney-client privilege, ordered those portions redacted, and allowed the City access to the unredacted portions of the declaration subject to a protective order. Garcia appealed, claiming that the unredacted portions of the declaration still contained privileged information. The City also appealed, contending it should have been permitted to review the entire declaration. The Court of Appeal ruled that a protective order would not sufficiently protect Garcia’s rights and held that the declaration may be filed under seal if the trial court, after in camera review, agrees with the privilege claim. The City appealed to the California Supreme Court.
Decision
The Supreme Court held that nothing in the relevant statutes precludes a Pitchess filing from being made under seal. The issue here is to balance the accused’s interest in protecting confidential information against the City’s right to effectively challenge the discovery motion and protect the privacy interests of its police officers. While the court’s decision appears at first glance to be a victory for criminal defendants, the procedural restrictions it placed on filing declarations under seal make it likely that fewer defense counsel will consider it worthwhile to attempt to do so.
The Court found that a supporting declaration may only be filed under seal when “[a] trial court will have determined that disclosure of identified portions of an affidavit would impinge upon privileged information, that those portions are necessary to support the Pitchess motion, and that filing under seal is the only feasible way to honor the privilege.” Such determinations must be made in a hearing held well in advance of the hearing on the actual Pitchess hearing and, in most cases, the City Attorney will receive at least a redacted version of the declaration.
The Court acknowledged that when the affidavit is redacted, the resulting procedure will be less informed by adversarial debate. However, it cited other instances in which limitations on the adversarial process are necessary. Neither prosecutors nor defense counsel are present during the in camera review of Pitchess records, and they therefore cannot argue the discoverability of those documents. Also, defense counsel is not entitled to attend an in camera hearing on a motion to reveal the identity of a confidential informant.