On October 16, 2013, 60 days after the request was submitted, the California Supreme Court denied Infill Builders’ request to depublish Citizens for Ceres v. Superior Court (5th Dist. 2013) 217 Cal.App.4th 889, a decision concerning the scope of the “common interest” exception to privilege waiver by disclosure in CEQA cases. Ceres, which has been heavily criticized by the CEQA/land use bar, holds that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate privilege, any privilege (including attorney-client and work product protection) is waived as to documents shared between the lead agency’s and project developer’s counsel at any time prior to project approval. This holding conflicts with the holding and reasoning of the Third District Court of Appeal in California Oak Foundation v. County of Tehama (3d Dist. 2009) 174 Cal.App.4th 1217, 1222-1223, which held that the common interests of the agency and the developer – for example, in producing a legally-sufficient EIR that will withstand legal challenge – could protect reasonably necessary disclosures of privileged information between them from being deemed a waiver.

While there are, of course, no reasons provided by the Supreme Court when it acts on depublication requests, it may have been significant that no party to the case petitioned for review of the decision. Additionally, this is an issue the Supreme Court may wish to “percolate” through further appellate court decisions in the districts to bring additional judicial reasoning to bear on it under various factual scenarios before the high court steps in to resolve the split.

In any event, at the current time any state trial court is now free to follow whichever rule it deems better-reasoned, with the caveat that most trial courts will normally follow their own District’s precedent. As is probably evident from my prior posts (e.g., “Depublication of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders,” posted August 26, 2013; “No Common Interest In CEQA Compliance Prior To Project Approval, Holds Fifth District In City of Ceres Decision That Conflicts with Third District’s California Oak Decision And Common Practice,” posted July 9, 2013), I believe the better-reasoned and more practical decision is California Oak. While California Oak’s holding and reasoning may (and hopefully will) prevail in future trial and appellate court litigation, the unsettled state of the law in this area, and the potentially serious consequences of privilege waiver, appear to make it inevitable that at some point the Supreme Court again will be called upon to resolve the split in authority created by Ceres.