Supreme Court to Review Decision on Accidental Disclosure of Privileged Documents Under CPRA
The California Supreme Court will review a lower court’s decision that disclosure of a document under the California Public Records Act (“CPRA,” Government Code §§ 6250 et seq.) waives any privileges attached to the document, even if the disclosure was accidental or by a “low-level” employee not authorized to waive the privilege. Last week, the Court decided it would review the California Court of Appeal’s decision in Ardon v. City of Los Angeles (Dec. 10, 2014, B252476).
In 2013, an attorney in a class action lawsuit against the City of Los Angeles (“City”) requested from the City documents related to the subject of the litigation. The attorney made the request under the CPRA, not as part of litigation discovery. The City produced certain documents responsive to the attorney’s request, including some that contained potentially privileged material. Once aware of the disclosure, the City requested that the attorney return the privileged documents.
In refusing to return the documents, the attorney relied on Government Code § 6254.5. This CPRA provision states that, when a public agency discloses documents—even documents exempt or privileged under the CPRA—the public agency can no longer claim any exemptions or privileges related to those documents, subject to certain express exceptions. The court, however, found none of these exceptions to apply.
In seeking a court order that the attorney return the documents, the City argued that California courts should recognize two new, implied exceptions to the CPRA’s waiver provision: the first for accidental disclosure and the second for unauthorized disclosure by a “low level” employee. The lower court rejected these arguments, concluding that waiver under the CPRA was different from waiver in litigation discovery, where the Legislature had provided a specific statutory process for litigants to maintain privileges and “claw back” inadvertently disclosed documents.
Now that the California Supreme Court has granted review in the case, the lower court’s decision is no longer binding precedent, and the Supreme Court will hear the case in the coming months.
For more information, please contact Ruthann G. Ziegler at 916.556.1531.