Metropolitan News-Enterprise


Thursday, September 15, 2005


Page 1


Secrecy of Documents Exchanged in Government Litigation Upheld


By KENNETH OFGANG, Staff Writer/Appellate Courts


Public entities and parties litigating against them can keep most litigation-related documents free from public disclosure under the California Public Records Act, the Fourth District Court of Appeal ruled yesterday.

The ruling, from the court’s Div. One, overturns most of San Diego Superior Court Judge Linda Quinn’s order granting the San Diego Union-Tribune’s bid to access documents in a pair of whistleblower suits by employees of San Diego State University.

The newspaper was granted access only to the deposition transcripts, which Justice Gilbert Nares said were subject to disclosure because the Code of Civil Procedure grants the public access to discovery in the absence of a sealing or protective order.

The lawsuits arose out of 2003 university audit that found evidence of mismanagement and other irregularities in the athletic department. The audit eventually led to the removal of top administrators, including former Athletic Director Rick Bay.

Plaintiffs’ Allegations

Ohton claimed that because of his cooperation with the audit, he unfairly lost his job as strength coach of the football team—although he remained strength coach for other sports—his hours were unfairly restricted and his employment environment became hostile. Ohton, a university employee for close to two decades, also claimed that his personal information was illegally disclosed.

Bartel, who was placed on leave and eventually reassigned after 18 years as the school’s athletic equipment manager, also claimed illegal disclosure of private information, as well as defamation. Bartell was placed on a leave of absence before the audit became public, after the press reported that he, two student assistants and two men believed to be football boosters had been photographed at a strip club in Columbus, Ohio a few days before  SDSU played Ohio State.

Bartel allegedly frequented strip clubs on road trips. But he emphatically denied claims that he did so in the company of employees who were below legal drinking age.

During the lawsuits, the newspaper requested that the university disclose communications with opposing counsel, as well as the deposition transcripts. The university rejected the requests, asserting they fell under the CPRA’s exemption for documents related to pending litigation.

In granting a writ of mandate sought by the company that publishes the Union-Tribune, Quinn reasoned that the exemption did not apply to documents not created by the university for use in litigation. She did, however, order than any personal information regarding the plaintiffs be redacted.

Nares, however, said the judge read the exemption too narrowly.

Ordinarily, he acknowledged, non-privileged communications between government lawyers and opposing counsel would not be covered by the exemption.

Justice Reasons

“However, when third parties such as the media seek litigation-related documents that the parties did not intend disclosed, except between themselves, different concerns arise,” he explained. “If third persons were able to obtain, through the PRA, all correspondence between opposing attorneys and clients in pending litigation or tort claims, it would eviscerate the parties’ ability to vigorously litigate and protect their clients’ interests.”

Applying that principle to the pending case, he noted that the university and the plaintiffs had strenuously objected to disclosure. “This holding is consistent with cases that have concluded that [the] exemption is not intended to only protect the attorney-client privilege or attorney work product, but more generally any documents that could be considered ëwork product’ generated during litigation,” the justice wrote.

The case is Board of Trustees of California State University v. Superior Court (Copley Press, Inc.), 05 S.O.S. 4438. 


Copyright 2005, Metropolitan News Company