Friday, February 8, 2019
Court of Appeal:
Judge Should Have Required Enhanced Privilege Log, Justice Miller Says
By a MetNews Staff Writer
A judge who found that a city’s privilege log in support of its stance that emails sought under the California Public Records Act were exempt from disclosure based on the attorney-client privilege was not authorized to order an in camera inspection of the communications, the Fourth District Court of Appeal has held.
Justice Douglas P. Miller of Div. Two wrote the opinion, filed Wednesday and not certified for publication.
A writ of mandate was granted, in the first instance, overturning an order for inspection issued by retired Kern Superior Court Judge Richard J. Olberholzer, sitting on assignment, as amended by an order from another retired judge, Elden S. Fox, formerly of the Los Angeles Superior Court, speeding up production by two days.
Supreme Court Opinion
The petitioner, the City of Hemet in Riverside County, contended that the order was barred by the California Supreme Court’s 2009 opinion in Costco Wholesale Corp. v. Superior Court. There, then-Justice Kathryn Werdegar, now retired, wrote:
“Because a court may order disclosure of information in order to determine whether it is protected by the work product doctrine, but may not order its disclosure to determine if it is subject to the attorney-client privilege, a court should without requiring disclosure first determine if the information is subject to the attorney-client privilege. If the court determines the privilege does not apply, it may then consider whether to order disclosure of the information at an in camera hearing for the purpose of deciding if it is protected work product.”
The party seeking the emails in the present case, real party in interest Concerned Citizens of Hemet, argued that the city had waived the privilege by failing to invoke it properly. The city initially failed to provide a privilege log, and then produced one containing vague generalities.
“The only three bases for a waiver are: (1) disclosing a privileged communication in a nonconfidential context; (2) failing to claim the privilege in a proceeding in which the holder has the legal standing and opportunity to do so; and (3) failing to assert the privilege in a timely response to an inspection demand....Real party does not contend that petitioner failed to assert the privilege, just that it did so improperly and failed to provide a privilege log.”
“[T]ne trial court should not have ordered in camera review of the claimed exempt emails; absent sufficient information in the privilege log to determine attorney-client privilege applied, the trial court should have ordered supplemental privilege logs, and imposed appropriate sanctions as necessary if the petitioner continued to provide inadequate information.”
The case is City of Hemet v. Superior Court, E071097.
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