Privileges and Waivers and Records, Oh My!

• Citation: Vol. 37 No. 2
• Publication year: 2014
• Author: By Mike H. Zischke, Alex M. DeGood, and Linda C. Klein*

Privileges and Waivers and Records, Oh My!

By Mike H. Zischke, Alex M. DeGood, and Linda C. Klein*

I. INTRODUCTION

California public agencies approving controversial projects and defending them in litigation often face disputes about the scope of the administrative record, and in particular, whether the record must include communications between the project applicant and the agency, and between their respective attorneys. They also face disputes about whether the record must include documents from agency consultants and sub-consultants. Resolving these disputes often involves determining whether documents are confidential pursuant to the attorney-client privilege or the work product doctrine, and whether the non-waiver common interest doctrine applies.

Agencies have wide discretion to determine a project applicant's level of involvement in the environmental review process. Some agencies maintain an open door; for example, they share screen check drafts of environmental documents and seek applicant input throughout the process. Some agencies allow or require the applicant to hire its own environmental consultant to produce the environmental document, which is then submitted to the agency for review. Other agencies treat the project applicant like any other community member, and at most, have the project applicant review only the project description for factual errors. The California Environmental Quality Act ("CEQA") permits all these approaches, as long as the lead agency independently reviews and analyzes the CEQA document.¹

Regardless of practice, the agency and the project applicant must understand principles of privilege and the associated common interest non-waiver doctrine to ensure that communications intended to be confidential remain that way. This article first summarizes the basic rules regarding attorney-client privilege, the attorney work product doctrine, and the non-waiver doctrine, and then summarizes some recent case law regarding these issues.

II. THE BASIC RULES OF ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT DOCTRINE, AND THE COMMON INTEREST NON-WAIVER DOCTRINE

A. Attorney-Client Privilege

The attorney-client privilege is a foundational privilege that provides the underpinning for the entire attorney-client relationship. "[A] client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer." ² This privilege is considered central to a functioning adversarial judicial system because it allows clients to disclose any and all facts necessary to receive unvarnished legal advice.³ Recognized from the earliest days of California statehood, the privilege has a "venerable pedigree that can be traced back 400 years."⁴

Communications made in confidence during an attorney-client relationship are privileged, and the privilege lasts throughout a client's lifetime and through the administration of his or her estate.⁵ The privilege is expansively construed and applies to all manner of communications, including documents no longer in a client's possession.⁶ The client holds the privilege and therefore can waive the privilege by disclosure to a third party, although as discussed in subsection C below, the non-waiver doctrine allows certain communications shared with a party outside the attorney-client relationship to remain privileged.⁷ The extent to which the common interest nonwaiver doctrine applies within the context of applicant-agency communications in land use matters is a source of ongoing controversy. See Section IV, below.

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B. Work Product Doctrine

Code of Civil Procedure section 2018.030(a) states "[a] writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances." Unlike the attorney-client privilege, the attorney rather than the client holds the work product privilege.⁸

The shield provided by the work product doctrine extends to work produced by an attorney's agents or consultants.⁹ The work product doctrine exists to "[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly," and to "[p]revent attorneys from taking undue advantage of their adversary's industry and efforts."¹⁰ As with other privileges, the holder can decide to disclose otherwise privileged documents and thereby waive the privilege.

C. The "Common Interest" NonWaiver Doctrine

As mentioned above, disclosure of a confidential communication to a third party generally waives that communication's privilege.¹¹ But there is an exception to the waiver rule when the disclosure is reasonably necessary to accomplish the purpose for which the lawyer was consulted.¹² For example, when an attorney discloses a confidential communication from a client to an expert to obtain the expert's assistance to better advise the client, the disclosure does not waive the attorney-client privilege.¹³ The idea animating this exception is that the client has not evidenced any abandonment of secrecy by authorizing the attorney to speak with third parties to obtain help with the legal matter.¹⁴

This exception to waiver is often referred to as the "common interest doctrine" or "joint defense doctrine"; this article uses "common interest doctrine."¹⁵ To determine whether a disclosure to third parties is covered by the common interest doctrine, courts must evaluate several questions. The first question is whether the disclosed information was privileged.¹⁶ The second question is whether the client had an expectation that the information would remain private.¹⁷ A joint defense agreement can be evidence that the client expected the information shared between the client's attorney and the third party would remain confidential.¹⁸ Third, the court must determine whether the communication was reasonably necessary for the accomplishment of the purpose for which the lawyer was consulted, i.e., whether it relates to a common interest of the attorneys' respective clients.¹⁹ If the court finds that these three criteria are satisfied, the common interest doctrine preserves the privileged nature and the confidentiality of the exchanged information.

The common interest doctrine is not an independent privilege, and it does not expand the scope of the underlying attorney-client privilege.²⁰ As a result, it cannot shield non-privileged communications from disclosure.²¹ Thus, when attorneys share privileged information, there is no such thing as a "joint defense privilege" for that information, and it is better practice to label the communication as a "confidential and privileged attorney-client communication" and a "joint defense communication."

III. THE BASIC RULES OF ADMINISTRATIVE RECORDS

In deciding whether to approve a development application, an agency will amass documents from the applicant, public, consultants, and itself related to the application. Some documents are public records; others are confidential. This section outlines the broad contours of the California Public Records Act ("CPRA") and exceptions...