It’s a Privilege
Mark E. Bale, Esq.
Schwartz Semerdjian Cauley & Moot LLP
California courts have long construed the civil discovery rules liberally so as to uphold the right to discovery and to permit, rather than to prevent, disclosure of information by witnesses wherever possible. California Code of Civil Procedure (“CCP”) § 2017.010 sets forth the scope of discovery in civil cases:
Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. (Emphasis added.)
Those two words “not privileged” can be easily swallowed up by the overriding general discovery principles of CCP § 2017.010 which we so often hear and assert - “relevant to the subject matter” and “reasonably calculated to lead to the discovery of admissible evidence.” However, those two words carve out very important and legitimate exceptions to the liberal scope of permissible discovery. Attorneys must be prepared to assert the legal privileges to protect their client’s interests when faced with discovery seeking privileged information that might otherwise be relevant the subject matter of the case.
The word “privilege” comes from the Latin privilegium, meaning a law for just one person, or a benefit enjoyed by an individual or group beyond what's available to others. In California there are a number of legal privileges that protect certain types of information from disclosure in the civil discovery process. As used in the rules governing discovery, “privileged” means the constitutional and statutory privileges (self-incrimination [California Evidence Code (“Evid C”), § 940], attorney-client [id., § 950 et seq.], spousal communication [id., § 980], doctor-patient [id., §§ 990 et seq., 1010 et seq.], clergyman-penitent (id., § 1030 et seq.), sexual assault victim-counselor [id., § 1035 et seq.], and official information [id., § 1040]) and the “qualified privileges” for such things as trade secrets (id., § 1060 et seq.), police personnel files (id., § 1043) and tax returns (Webb v Standard Oil Co. (1957) 49 Cal.2d 509.) Gonzalez v Superior Court (1995) 33 Cal.App.4th 1539, 1547.
For a client involved in a lawsuit who has been served with discovery by another party, or for third parties that have received a subpoena for production of documents or testimony in a pending lawsuit, in addition to general constitutional privacy rights, the following privileges may come into play to restrict disclosure of information in the civil discovery context:
- Privilege against self-incrimination – Witnesses may not be compelled to incriminate themselves. People v Trujeque (2015) 61 Cal.4th 227, 267. Under both the Fifth Amendment and California Constitution Article I, § 15, a person has the right to refuse to answer potentially incriminating questions posed in any proceeding. Hudec v Superior Court (2015) 60 Cal.4th 815, 819. This privilege is personal for an individual and does not extend to a business entity. The privilege not only protects an individual from being forced to testify against oneself in a pending criminal proceeding, but also protects an individual from being compelled to answer questions in any civil proceeding when the individual reasonably believes the answers might incriminate him or her in a criminal case. Oiye v Fox (2012) 211 Cal.App.4th 1036, 1052.
- Attorney-client privilege – Communications between an attorney and a client (or potential client) are presumed to have been made in confidence. A client has a privilege to refuse to disclose a confidential communication between the client and the client’s attorney made in the course of their attorney-client relationship. Evid C §§ 952, 954; DP Pham LLC v Cheadle (2016) 246 Cal.App.4th 653, 663.
- Marital privileges – A married person has a privilege in any proceeding not to testify against that person’s spouse (Evid C § 970), and not to be called as a witness, if that person’s spouse is a party, by a party adverse to that spouse (Evid C § 971). Termination of the marriage, however, terminates this privilege. See People v Bradford (1969) 70 Cal.2d 333, 343. Evid C § 980 provides that one spouse may prevent both the other spouse and other people from testifying about confidential marital communications. People v Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 419. Termination of the marriage does not terminate the privilege with respect to confidential communications between the spouses during the marriage.Id. at 420.
- Physician-patient privilege – A patient has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications with a physician. Evid C § 994. The dual purpose of the privilege is to protect the patient from the humiliation that might follow the disclosure of an ailment and to encourage full disclosure to the physician of information necessary for diagnosis and treatment. Snibbe v Superior Court (2014) 224 Cal.App.4th 184, 191–192.
- Clergyman-penitent privilege – Clergy and penitents each have a privilege not to testify about penitential communications. Evid C §§ 1032, 1033, 1034; Conti v Watchtower Bible & Tract Soc. of New York, Inc. (2015) 235 Cal.App.4th 1214, 1229. The privilege does not apply unless the communication is made “in the presence of no third person so far as the penitent is aware." Id. In addition, the communication must be “penitential,” as that term is commonly understood, e.g., “sorrow for sins or faults.” Id. at 230.
- Psychotherapist-patient privilege - A patient has a privilege to refuse to disclose, and to prevent others from disclosing, confidential communications with a psychotherapist. Evid C § 1014. Kirchmeyer v Phillips (2016) 245 Cal.App.4th 1394, 1403. The privilege covers not only communications made exclusively to the psychotherapist, but also those communications disclosed to third parties such as staff who, as far as the patient is aware, are present to further the patient’s interest in the consultation. Evid C § 1012; People v Cannata (2015) 233 Cal.App.4th 1113, 1123.
- Official records and information privilege - Information acquired in confidence by public employees is privileged where its disclosure would be against the public interest. This requires a finding that the need for confidentiality outweighs the interest of justice in full disclosure of relevant information. Evid C § 1040(b).
- Privilege to protect a trade secret – The owner of a trade secret has a privilege to refuse to disclose the secret and to prevent another from disclosing it, unless allowing the privilege will conceal fraud or result in injustice. Evid C § 1060.
- Privilege to protect police personnel files - Information contained in a peace officer’s or custodial officer’s personnel file is protected from discovery or disclosure under California Penal Code (“Pen C”) § 832.7 and Evid C § 1043 et seq. This protection applies in civil, criminal and administrative proceedings. Copley Press, Inc. v Sup.Ct. (County of San Diego) (2006) 39 Cal.4th 1272, 1284. The protection extends to any information of a private nature, including complaints and investigations of the officer and personal information concerning the officer such as home address, marital status, education and employment history, or employee advancement, appraisal and discipline. (See Pen C §§ 832.7(a), 832.8.)
- Tax return privilege – Taxpayers are privileged to withhold disclosure of copies of both their federal and state tax returns and the information contained therein. Webb v Standard Oil Co. of Calif. (1957) 499 Cal.2d 509, 513-514. The purpose of the privilege is to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in their tax return, without fear that such statements will be revealed or used against the taxpayer for other purposes. Sav-On Drugs, Inc. v Superior Ct. (Botney) (1975) 15 Cal.3d 1, 6.
As with most laws and rules, there are exceptions and nuances associated with the privileges which affect whether a certain privilege applies or can be validly asserted in a given situation. Details about the nuances related to each of these privileges could serve as topics for entire articles on their own so it is important for attorneys to research and thoroughly consider the potential application of a privilege to their client’s particular discovery scenario. Additionally, most privileges are waived if not timely raised so it is critical for attorneys to consider all privileges potentially available to their client when responding to discovery requests or subpoenas in order to preserve for the client the protections afforded by these legal privileges.