CA Supreme Court Upholds Attorney-Client Privilege

Costco hired a law firm to advise the company regarding the classification of certain managers as exempt. The lawyer interviewed two of the managers to analyze their duties and responsibilities. She then produced a 22-page report. The report was considered confidential and privileged from the start.

Later, Costco was the subject of a wage and hour class action regarding the alleged mis-classification of the managers. The plaintiffs sought disclosure of the opinion letter. Costco objected, asserting attorney-client privilege.

Lower courts held that portions of the letter, containing factual information rather than attorneys' advice or opinions, should be disclosed. The California Supreme Court accepted the case for review and reversed.

The court flatly rejected any attempt to "parse" the letter:

We hold the attorney-client privilege attaches to Hensley’s opinion letter in its entirety, irrespective of the letter’s content. Further, Evidence Code section 915 prohibits disclosure of the information claimed to be privileged as a confidential communication between attorney and client “in order to rule on the claim of privilege.” (Id., subd. (a).) Finally, contrary to the Court of Appeal’s holding, a party seeking extraordinary relief from a discovery order that wrongfully invades the attorney-client relationship need not also establish that its case will be harmed by disclosure of the evidence.

Without deciding whether the communications between the managers and lawyer during the wage and hour audit were privileged, the court held that the lawyer's discussion with Costco concerning the managers' interviews were still privileged:

In sum, if, as plaintiffs contend, the factual material referred to or summarized in Hensley’s opinion letter is itself unprivileged it may be discoverable by some other means, but plaintiffs may not obtain it by compelling disclosure of the letter.

This obviously is an important decision for employers seeking advice from lawyers without fear of having that advice disclosed in later discovery.

The case is Costco Wholesale Corp. v. Superior Court and the opinion is here.

Court of Appeal Explains Attorney-Client Privilege Applicable to Corporations

The attorney-client privilege may apply to communications between lower-level corporate employees even when an attorney is not a party to the particular communication. That's what the Court of Appeal held in Zurich American Ins. Co. v. Superior Court. "If legal advice is discussed or contained in the communication between Zurich employees, then to that extent, it is presumptively privileged. A communication reflecting a discussion of litigation strategy which expresses that the strategy is in response to advice of counsel would come within the privilege."

The Court framed the issue as follows:

The fundamental issue in this case is whether corporate communications not directly involving an attorney, but which discuss legal advice, come within this privilege. As we have seen, the discovery referee and trial court adopted a definition of the attorney-client privilege limited to "items in the claim file that contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct communications from counsel, as indicated in the comment section of the attached listing of documents,... " This definition is inadequate because it fails to take into account language of section 952 expressly contemplating that confidential communications include information transmitted to persons "to whom disclosure is reasonably necessary for the transmission of the information," and those to whom disclosure is reasonably necessary for "the accomplishment of the purpose for which the lawyer is consulted." Section 952 expressly includes legal opinions and advice given by a lawyer within the definition of confidential communication.

The court of appeal reversed a trial court's determination that several communications were not privileged. Here is the test for privilege the court developed:

The first relevant inquiry is whether the document contains a discussion of legal advice or strategy of counsel for Zurich. Section 952 provides that a "confidential communication" "includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."

If it is determined that the document reflects legal advice or opinions and is thus privileged, the court must determine whether Zurich waived the privilege by distributing the advice within the corporation. Section 952 extends the privilege to confidential communications shared with "those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted,... " The disputed documents must be reviewed to determine whether the Zurich employees to whom legal advice was relayed come within this broad definition.
[citations] . . . .

The key concept here is need to know. While involvement of an unnecessary third person in attorney-client communications destroys confidentiality, involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the legal consultation preserves confidentiality of communication." [citation]

The relay of legal advice to corporate personnel not present at the attorney-client consultation was addressed by the INA court. "[D]isclosure may be made to persons not present at the attorney-client consultation, i.e., the third persons need not necessarily participate in the legal consultation." (Id. at p. 766.)
. . .

The Court also noted a couple of additional issues that arise in litigation over privilege (bullets are mine for ease of reading):

- otherwise routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is "copied in" on correspondence or memoranda. [citations]
- In addition, Zurich may not shield facts, as opposed to communications, from discovery. Any relevant fact may not be withheld merely because it was incorporated into a communication involving an attorney.
- In addition, "It is settled that the attorney-client privilege is inapplicable where the attorney merely acts as a negotiator for the client, gives business advice or otherwise acts as a business agent. . . . [citations]