In Ardon v. City of Los Angeles, published December 10, 2014, the Second District Court of Appeal, Division 6, affirmed a trial court decision denying the defendant city's motion to compel the plaintiff to return privileged documents the city turned over to the plaintiff's counsel in response to a California Public Records Act request, and to disqualify the plaintiff's counsel. The plaintiff had sued the city alleging that a telephone users' tax was improper. The plaintiff's attorney made a Public Records Act request for documents relating to the subject matter of the complaint. The attorney informed the city's attorneys that through the request she had obtained documents that the city had listed on a privilege log produced during discovery. The city stated that the documents were privileged, and had been inadvertently produced. The plaintiff's attorney refused to return the documents.
The appellate court concluded that the rules that govern inadvertent production of documents during discovery in a lawsuit do not govern production in response to a Public Records Act request. Under Government Code sections 6254 and 6254.5, although privileged documents need not be produced in response to a Public Records Act request, production of privileged documents waives any privilege. The Act does not contain any exception for inadvertent disclosure, and neither the statutory language nor the legislative history supports any implied exception for such disclosure. Further, since the law forbids selective withholding, a public entity may not produce a privileged document to one person and then refuse to produce it to another on the ground that the document is privileged. The plaintiff's counsel did not violate the rules of professional conduct by making the request.