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December 19, 2014

Court of Appeal Holds Statutory Privileges Waived by Inadvertent Disclosure Made under a Public Records Act Request

On December 10, 2014, Division 6 of the Second District Court of Appeal upheld a trial court order denying the City of Los Angeles’s motion to compel the return of privileged documents, holding that the City waived any claim of privilege to documents inadvertently produced in response to a California Public Records Act request.

The issue in Ardon v. City of Los Angeles (Dec. 10, 2014) 2014 WL 6968719 arose from a public records request made by Plaintiff’s attorney.  Upon receipt of the requested documents, Plaintiff’s counsel notified the City that three of the documents appeared to be privileged or contained privileged information.  The City informed Plaintiff’s counsel that the documents had been inadvertently produced in response to the public records request and demanded Plaintiff’s counsel return the documents and agree not to rely upon the documents in any way.  Plaintiff’s counsel declined to do so, contending the City waived any claim of privilege upon its disclosure of the documents.  The City filed a motion with the court to compel the return of the three documents. However, the trial court denied the City’s motion, concluding the City’s production of the documents in response to a public records request waived any privilege that might have attached to the records, whether or not the document production was the product of mistake, inadvertence, or excusable neglect. 

On appeal, the City argued that public records requests are comparable to discovery requests in litigated disputes and that an “inadvertent production” of privileged material should be treated similarly in both circumstances.  The Court of Appeal found no support for the City’s argument in the legislative history and plain language of Public Records Act.  The Court of Appeal agreed with the trial court’s observation that “disclosure of documents under the [Public Records Act] is not the same as disclosure in the course of litigation discovery” and that the Public Records Act “was not enacted to supplement the Civil Discovery Act. . . .”  Agreeing with the trial court’s reasoning, the Court of Appeal held that unlike litigation discovery, where disclosure is expressly protected from waiver by statute, nothing in the Public Records Act gives the entity producing records either the right to recover otherwise privileged records that it inadvertently produced or a mechanism to seek the return of such documents.  In further distinguishing civil litigation discovery from public records disclosures, the Court of Appeal highlighted that while civil discovery is subject to court supervision and involves a judge with the power to order the return of documents, that is not the case with public records requests and responses.

According to the Court of Appeal’s decision, even if a document is privileged, once it has been disclosed pursuant to the Public Records Act at Government Code section 6254.5, even by mistake, inadvertence, or excusable neglect, any privilege that may have attached is deemed to have been waived.  Further, once the City disclosed the documents to one member of the public, it was prohibited from “selectively withholding” that same document from any other member of the public. Thus, once a privileged document is produced under the Public Records Act, the waiver applies to any other requests for the same document.

The court also rejected the City’s contention that because the documents were produced by a clerical employee who was not authorized to waive the attorney-client privilege, the waiver could not apply. The court declined to “rewrite legislation” that mandated the waiver upon any disclosure of privileged documents under the Public Records Act, “notwithstanding any other provision of law.”

In light of this recent decision, public entities should exercise caution when reviewing documents compiled pursuant to a public records request to ensure privileged documents are not inadvertently or mistakenly produced; once a document is produced, any such privilege is forever waived.

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