In Ardon v. City of Los Angeles, the unanimous California Supreme Court narrowly interpreted a statutory waiver included in the California Public Records Act to exclude “inadvertent” disclosures. In responding to a public records request, a governmental agency can withhold documents under several exemptions, including that the documents are privileged under the Evidence Code, if it can show that the exemption applies. See, Gov. Code, §§ 6254-6254.30. However, Gov. Code § 6254.5 provides that any actual production of a document in response to a public records request waives most exemptions that might otherwise apply.
Responding to discovery requests in a class action, the City provided a privilege log, which the trial court later upheld to bar production of the listed documents. A few years later, plaintiff’s counsel filed a request for related documents under the Public Records Act. Among the 53 documents provided, two were on the prior privilege log as protected by the attorney-client privilege. Plaintiff advised opposing counsel of this, but refused the City’s demand to return the documents as inadvertently produced, citing § 6254.5. Finding a statutory waiver under § 6254.5, the trial court denied the City’s motion to compel return of the documents, and the Court of Appeal affirmed.
The Supreme Court found the statute ambiguous on whether it applied to an inadvertent disclosure, as opposed to “a voluntary and knowing disclosure.” The Court then considered the legislative history of the Public Records Act, the well-established importance of the attorney-client privilege, and cases holding that an inadvertent disclosure did not constitute a wavier under Evidence Code § 912. The Court concluded that an inadvertent disclosure was also not a waiver under § 6254.5.
However, this left open the question of whether this was an inadvertent disclosure. The cases under Evidence Code § 912 largely addressed facts in which counsel inadvertently violated a client’s privilege by accidentally producing privileged documents, often as part of a large production. In this case, a designated City employee allegedly produced these documents on purpose as part of a production of 53 documents. Given the ongoing litigation and previous privilege log, the Court expressed skepticism that this disclosure was not inadvertent, but did not decide the issue given the lack of any findings below on this point. In doing so, the Court warned public agencies that this holding was not an invitation to revisit previous public records productions and that this holding only applied “to truly inadvertent disclosures.” The lower courts will need to sort out what that might mean in this context.
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