ATTORNEYS ADVICE IS PRIVILEGED, INCLUDING OTHERWISE DISCOVERABLE FACTS CONTAINED IN COMMUNICATIONS

Confidential communications between attorneys and clients are privileged. But what about facts contained in those communications that are otherwise discoverable and relevant to a pending lawsuit? May courts order parties to produce communications with factual portions revealed, so long as attorney advice and analysis is redacted? No, says the California Supreme Court.

In Costco Wholesale Corporation v. Superior Court, Case No. S16335, the Supreme Court considered privilege issues in the context of a legal memorandum requested by Costco to assess whether certain Costco managers were properly classified as exempt from California’s wage and hour laws. The trial court had ordered Costco to produce a version of the letter which had the attorney’s advice and analysis redacted, revealing only factual information being reported by the attorney. The factual information about the Costco managers’ job duties, reasoned the lower court, did not become privileged by mere transmission by an attorney.

The Supreme Court reversed. The key principle of the case is that even factual information is protected when it is contained in a privileged communication. In assessing privilege, the decisive question is not the contents of the communication (i.e., factual information versus analysis and opinion), but whether the communication was made for the purpose of providing legal advice.

The court also held that, per California Evidence Code section 915, the trial court was not authorized to order an in camera review of the memorandum to assess whether it was protected by the attorney-client privilege. Such an in camera review may only be ordered with the consent of the party asserting the privilege, or after the court has determined that the privilege has been waived or a privilege exception applies.