Case Involves Attorney-Client Privileged Documents Released During Litigation

The California Supreme Court has granted review of a controversial Public Records Act ruling and will decide whether the well-recognized protection for attorney-client privileged documents inadvertently disclosed during the civil litigation discovery process will extend to the PRA. Its March 12 order granting review means the lower court ruling that accidental disclosure waives privilege is no longer the law.

The 2nd District Court of Appeal, Division 6 in Ventura held in December that even accidental or inadvertent disclosure of privileged records in response to a PRA request waives any claim of exemption under the Act. In Ardon v. City of Los Angeles, the City inadvertently disclosed attorney-client privileged documents during a production of records in response to a request under the PRA made by an attorney representing Ardon as part of Ardon’s lawsuit against the City over a telephone users tax. The City demanded that the attorney return the documents and agree not to rely on them. The attorney refused, contending that the City had waived any claim of privilege by disclosing the records.

The City had argued that inadvertent disclosure of privileged documents under the PRA does not waive the privilege. That argument was supported by case law that protects the privilege for documents inadvertently disclosed during the civil litigation discovery process. However, the appellate court disagreed and drew a clear distinction between the civil litigation discovery process and the PRA.