Thursday, December 11, 2014
Court of Appeal Rules:
Can’t Require Return of Privileged Documents Provided Under PRA
By a MetNews Staff Writer
The City of Los Angeles, in inadvertently supplying privileged documents in response to a Public Records Act (“PRA”) request, waived confidentiality and the documents can be used as evidence in litigation, the Court of Appeal for this district held yesterday.
The Ventura-based Div. Six decided the appeal, affirming a decision by Los Angeles Superior Court Judge Lee Edmon, who is slated to become presiding justice of Div. Three on Jan. 5.
Edmon denied the city’s motion to force a man who is suing it, in connection with a challenge to a “telephone users tax,” to return the documents and to disqualify his lawyer, San Diego attorney Rachele R. Rickert.
The city argued that the records that were erroneously delivered pursuant to the PRA should be treated the same as privileged matter that is inadvertently produced in discovery.
Agrees With Edmon
Writing for the appeals court, San Luis Obispo Superior Court Judge Earle Jeffrey Burke, sitting on assignment, said that Edmon “accurately observed” that “disclosure of documents under the [PRA] is not the same as disclosure in the course of litigation discovery.”
He quoted her as saying in her order:
“Unlike litigation discovery, where inadvertent disclosure is expressly protected from waiver by statute (see Evid. Code, § 912; Code Civ. Proc., § 2031.285), any privileged document disclosed pursuant to the [PRA] is waived as to the world ‘[n]otwithstanding any other provisions of the law[.]’ (Gov. Code, § 6254.5.)”
“Nothing in the PRA gives the entity producing it either the right to recover it or a mechanism to seek its return….[B]ecause the documents were disclosed to Ms. Rickert, the City is precluded from denying disclosure to anyone who asks.”
Rickert Acted Properly
The city sought to disqualify Rickert and her law firm, Wolf Haldenstein Adler Freeman & Herz, on the ground that by asking the city for records by means of improperly communicating with a party that was represented by counsel. Responding, Burke wrote:
“Judge Edmon concluded that ‘Ms. Rickert used the [PRA] for exactly the purpose the Legislature intended. Nothing in [her] request targeted privileged information. It merely requested generic categories of public records relating to the adoption of a citywide tax ordinance that Ms. Rickert believed to be unlawful. It is difficult to conceive of a request more squarely within the Legislature’s intent in enacting the [PRA].’ We agree.”
He also quoted Edmon as saying:
“As the City concedes, Rule 2-lOO(c) expressly permits an attorney to contact a represented public official about the subject matter of the official’s representation in order to preserve the attorney’s right to petition the government….Ms. Rickert’s exercise of her statutory and constitutional rights to petition her government regarding a matter of public importance was entirely within the scope of permitted professional conduct, and there is no basis to disqualify her or any members of her law firm under Rule of Professional Conduct 2-100.”
The case is Ardon v. City of Los Angeles, 2014 S.O.S. 5587.
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