Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate, Los Angeles County Super Ct. No. BC418155 Rolf M. Treu, Judge.
Munger, Tolles & Olson, Terry E. Sanchez, Lika C. Miyake and Katherine M. Forster for Petitioner.
No appearance for Respondent.
Charles T. Mathews & Associates, Charles T. Mathews, Benjamin Zeng and Steven Hilst for Real Party in Interest.
WILLHITE, Acting P. J.
INTRODUCTION
Southern California Edison Company (SCE) petitions for writ of mandate, contending that the trial court abused its discretion by ordering it to produce documents in response to discovery requests propounded by real party in interest, Miriam Keeton, because the documents at issue contain matter protected by the attorney-client privilege. We agree that the information withheld by SCE was privileged, even though the communications were between non-attorney employees of SCE, because the communications pertained to legal advice and strategy given in the course of the lawyer-client relationship, and involved only corporate employees to whom disclosure was reasonably necessary in furtherance of the purpose for which the lawyer was consulted. We therefore grant the relief requested by SCE and direct the trial court to vacate its order requiring production of the documents at issue, and instead issue an order denying the motion to compel production of those documents.
FACTUAL AND PROCEDURAL BACKGROUND
The Lawsuit
Real party in interest Miriam Keeton filed the present lawsuit for discrimination on the basis of race and gender in July 2009, while she was still employed by petitioner SCE. SCE filed an answer in August 2009. William Harn, in-house counsel for SCE, initially appeared on behalf of SCE.
The Discovery Motion
In April 2010, Keeton filed a motion to compel supplemental responses to her request for production of documents, asserting as to some of the documents that SCE had improperly redacted and withheld from production several documents based on the attorney-client privilege and attorney work-product doctrine, as asserted in SCE’s redaction and privilege logs. Keeton argued the attorney-client privilege is limited in scope to conversations between attorney and client, and the withheld or redacted documents consisted instead of correspondence between employees of SCE. The SCE employees named in the correspondence included Janine Bell, a human resources representative for SCE, and Brandon Tolentino, Erik Takayesu, and Pamela Anaya, who were Keeton’s supervisors at SCE.
Although the motion to compel requested supplemental responses for numerous documents, only three documents remain at issue. The first is listed on SCE’s privilege log as an e-mail message dated July 30, 2009, from Bell to Tolentino and Takayesu, and described as “e-mail message re conversation with attorney.” The other two are listed on SCE’s redaction log as an e-mail message dated November 13, 2009, from Bell to Anaya “re request from counsel”; and an e-mail message dated July 30, 2009, from Takayesu to Bell “re conversation with counsel.”
SCE filed opposition, contending that “Keeton [was] not entitled to discover documents that reveal, contain or reference attorney-client communications.” SCE stated that the documents withheld or redacted were communications that “were intended to be confidential and were made in the course of an attorney-client relationship.”
On June 29, 2010, the trial court ordered the parties to meet and confer further with regard to the disputed documents. The trial court stated for the guidance of the parties: “[SCE] argues in opposition that ‘simply because the e-mails do not reflect an attorney name in the header does not eliminate the possibility that the e-mails would reveal attorney-client communications.’ This may be true; however, the burden is on [SCE] to establish that the privilege is properly asserted. [SCE] did not even attempt to do so; [SCE] did not state how or why these documents could possibly be privileged. Do they reference discussions with attorneys? Are they forwarded from attorneys? What makes them privileged? The parties are ordered to meet and confer with respect to each document at issue, and [SCE] is ordered to either produce the document(s) or to articulate a specific reason why each document is subject to the privilege.”
Thereafter, both parties filed supplemental briefing, but neither party cited controlling authority to assist in determining the issues involved.
On July 28, 2010, the court issued a tentative order, observing that SCE’s contentions were that some communications discussed documents being put together at attorney request, and others pertained to communications with outside counsel. However, SCE had the burden of establishing that its asserted privileges had merit, and it had continued to fail to brief this issue. The court stated it “[was] not aware of any authority permitting a party to withhold documents (in this case mostly e-mails) from one non-attorney to another non-attorney on the grounds that the documents reference communications with an attorney.” Since it was SCE’s burden to provide such authority and it had not done so, the court indicated it would order SCE to produce the documents.
At oral argument, counsel for SCE explained that the redacted material pertained to communications with SCE’s counsel, William Harn, who instituted the investigation into Keeton’s claims and whose name appeared on the early pleadings as defense counsel. Bell (the human resources representative) and Keith Dobson, the equal opportunity employment investigator, worked with Harn to conduct the investigation and gathered information per Harn’s request. Counsel explained that SCE “ha[d] redacted the information pertaining to communications between counsel and the person responsible for gathering the information.”
The court adopted its tentative order as its ruling, thus ordering SCE to produce the documents.
The Motion for Reconsideration
SCE filed a motion for clarification and/or reconsideration, pursuant to Code of Civil Procedure sections 1008 and 473. For the first time, it provided citation to legal authority stating that the attorney-client privilege can apply to documents sent between non-attorney employees of a company where such documents reference communications with counsel. SCE cited Evidence Code section 952, and also Zurich American Ins. Co.v. Superior Court (2007) 155 Cal.App.4th 1485 (Zurich), in which this court decided that the corporate attorney-client privilege extends to confidential communications between agents of the client regarding legal advice and strategy, in which the corporation’s attorneys are not directly involved or which do not include excerpts of direct communications from the attorneys.
SCE asserted that the failure to previously bring this authority to the court’s attention was due to the responsible attorney’s excusable error. The attorney responsible for handling this litigation on behalf of SCE filed a declaration stating that during June and July of 2010, she was dealing with a personal crisis involving her mother’s critical illness, and a family disagreement over the proper course of treatment. “While engaged in the discovery dispute with Plaintiff’s counsel over privileged documents and communications, I believed that I had made the basis for withholding clear in providing supplemental responses. However, I did not cite the authority as set forth in the accompanying motion in my briefs to the Court and would have done so had I not been faced with the personal challenges presented by my mother’s condition [which had since improved].”
Keeton opposed the motion for reconsideration. Thereafter, the trial court denied the motion for reconsideration.
The Petition for Writ of Mandate
SCE then filed the present petition for writ of mandate, asking that we compel the trial court to vacate its orders compelling production of the subject documents. By order dated October 7, 2010, we issued an alternative writ of mandate, issued a temporary stay of further proceedings in respondent superior court, requested that Keeton file a return and SCE a reply, and set the matter for oral argument.
We now grant a peremptory writ of mandate.
DISCUSSION
“Extraordinary review of a discovery order will be granted when a ruling threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy. [Citation.] ‘“We review discovery orders under the abuse of discretion standard, and where the petitioner seeks relief from a discovery order that may undermine a privilege, we review the trial court’s order by way of extraordinary writ. [Citation.]”’ [Citation.] ‘“A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.” [Citation.]’ [Citations.]” (Zurich, supra, 155 Cal.App.4th at pp. 1493-1494.)
The Controlling Statutory and Case Law
“The attorney-client privilege, set forth at Evidence Code section 954, confers a privilege on the client ‘to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer....’ The privilege ‘has been a hallmark of Anglo-American jurisprudence for almost 400 years.’ (Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599.) Its fundamental purpose ‘is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters. [Citation.]... [¶] Although exercise of the privilege may occasionally result in the suppression of relevant evidence, the Legislature of this state has determined that these concerns are outweighed by the importance of preserving confidentiality in the attorney-client relationship. As this court has stated: “The privilege is given on grounds of public policy in the belief that the benefits derived therefrom justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence.” [Citations.]’ (Id. at pp. 599-600.) ‘[T]he privilege is absolute and disclosure may not be ordered, without regard to relevance, necessity or any particular circumstances peculiar to the case.’ [Citation.]” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 732.)
At issue in this case is whether the attorney-client privilege can apply to documents sent between non-attorney employees of a company where such documents reference communications with counsel. Evidence Code section 952 provides: “‘confidential communication between client and lawyer’ means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than 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, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.” (Italics added.)
In Zurich, supra, 155 Cal.App.4th 1485, a bad faith insurance case, the discovery referee and the trial court found that everything in a claims file was discoverable except actual copies of letters or e-mails from outside counsel, documents created by counsel or received by counsel, or that contained direct communications from counsel. In other words, it limited application of the attorney-client privilege to communications by counsel to the client, and by the client to counsel. (Id. at p. 1493.) The insurance company filed a petition for writ of mandate seeking to vacate the trial court’s production order, and this court granted the requested relief, finding the referee’s and trial court’s standard of applicability of the attorney-client privilege too narrow.
As in the present case, the question before the court in Zurich was “whether the corporate attorney-client privilege extends to confidential communications between agents of the client regarding legal advice and strategy, in which the corporation’s attorneys are not directly involved or which do not include excerpts of direct communications from the attorneys.” (Id. at p. 1494.) The court cited Upjohn Co. v. United States (1981) 449 U.S. 383 for its observation that the privilege rests on the need for the advocate and counselor to know all that relates to the client’s reasons for seeking representation if the professional mission is to be carried out. In the corporate setting, the attorney-client privilege may extend to communications involving middle- and lower-level employees. In that setting, it will frequently be employees beyond the control group who will possess the information needed by the corporation’s lawyers. Middle-level and lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he or she is adequately to advise the client with respect to such actual or potential difficulties. (Id. at pp. 389-392.)
The Zurich court thus concluded: “It follows that in order to implement the advice of lawyers, the advice must be communicated to others within the corporation. It is neither practical nor efficient to require that every corporate employee charged with implementing legal advice given by counsel for the corporation must directly meet with counsel or see verbatim excerpts of the legal advice given.” (Zurich, supra, at p. 1498.) The privilege applies even where disclosure is made to persons not present at the attorney-client consultation; the third persons need not necessarily participate in the legal consultation. (Id. at p. 1503.) Based on these conclusions, the Zurich court remanded the matter to the trial court to conduct a new review of the disputed documents to determine (1) whether each document contained a discussion of legal advice or strategy of counsel and, if so, (2) whether the privilege had been waived by involving unnecessary third persons or whether disclosure had been made only to those third persons to whom disclosure was reasonably necessary to further the purpose of the legal consultation. (Ibid.)
The three documents at issue here clearly reference attorney communications, including inquiries and advice. The e-mail of July 30, 2009 from Bell to Tolentino and Takayesu stated in relevant part, “I am continuing with conversations with Harn. I had provided [redacted]. However, he came back with a couple of questions I could not answer. [Redacted.] Then he said, [redacted].” The e-mail of November 13, 2009 from Bell to Anaya, copying Tolentino and Takayesu, stated “The attorney has asked that [redacted].” Lastly, the e-mail of July 30, 2009 from Tolentino to Bell stated: “When Bill [Harn] and I talked a while back, he suggested that I [redacted].” In each case, other portions of the message that did not reference attorney-client communications were produced. The persons involved in the e-mails were, according to Keeton’s own description in her motion to compel, either human resources employees or Keeton’s supervisors. In each case, discussion of legal advice or strategy of counsel was clearly involved. There was no indication that the privilege had been waived by involving unnecessary third persons; the communicants involved apparently included only those third persons to whom disclosure was reasonably necessary to further the purpose of the legal consultation. Therefore, the attorney-client privilege was applicable to the redacted portions of the documents at issue. SCE justifiably asserted the privilege as to the redacted portions of the documents.
The trial court’s order requiring SCE to produce the documents in unredacted form is understandable given that SCE did not cite either Evidence Code section 952 or the Zurich opinion until it filed its motion for reconsideration. Nonetheless, because of the importance of protecting the inviolability of the attorney-client privilege, and given that the state of the law did in fact favor SCE’s assertion of the privilege, we conclude that the order requiring disclosure must be set aside.
“The party claiming the privilege has the burden of establishing the preliminary facts necessary to support its exercise, i.e., a communication made in the course of an attorney-client relationship. [Citations.] Once that party establishes facts necessary to support a prima facie claim of privilege, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish the communication was not confidential or that the privilege does not for other reasons apply. (Evid. Code, § 917, subd. (a); Wellpoint Health Networks, Inc. [(1997) 59 Cal.App.4th 110] at pp. 123-124.)” (Costco Wholesale Corp. v. Superior Court, supra, 47 Cal.4th at p. 733.)
Evidence Code section 917, subdivision (a) provides: “If a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client... relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.”
Thus, SCE had the burden of showing preliminary facts necessary to support assertion of the privilege. It provided the following descriptions of the documents in its redaction and privilege logs, which were attached to the motion to compel: (1) “e-mail message re conversation with attorney” from Bell to Tolentino and Takayesu; (2) e-mail message from Bell to Anaya “re request from counsel”; and (3) e-mail message from Takayesu to Bell “re conversation with counsel.” Given that Keeton had identified the people involved as her supervisors and a human resources employee, these factual descriptions were sufficient to support SCE’s prima facie claim of privilege, i.e., that the withheld information constituted communications in the course of the lawyer-client relationship involving “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.” (Evid. Code, § 952.) This sufficed to pass the burden to Keeton to make a prima facie showing that the claimed privilege did not apply, or that an exception existed, or that there had been an expressed or implied waiver. (See Wellpoint Health Networks, Inc. v. Superior Court, supra, 59 Cal.App.4th at pp. 123-124.)
Instead, Keeton merely argued, erroneously, that the communications were between non-lawyers and therefore were necessarily not privileged, regardless of their content. She did not argue that the documents at issue did not contain or reference attorney impressions, advice, opinions, or legal theories. However, the state of the law, as stated in Zurich, unquestionably supported SCE’s position.
Keeton cannot be heard to complain that SCE had not cited the relevant authority, because she too had an obligation to bring applicable authority to the court’s attention, even if it was not in her favor. It is counsel’s duty to assist the court by discussing the available authorities (Tate v. Canonica (1960) 180 Cal.App.2d 898, 900); that duty applies equally to discuss authority which is not favorable to the position one’s client is taking. In any event, we cannot ignore controlling precedent. Once SCE had satisfied its burden of showing preliminary facts necessary to support assertion of the privilege, the burden shifted to Keeton. We conclude that she did not meet her burden of proof to establish the communication was not confidential or that the privilege did not apply for other reasons. The order entered by the trial court ordering production of the documents thus constituted an abuse of discretion.
DISPOSITION
The alternative writ is discharged. Let a peremptory writ of mandate issue compelling the respondent superior court to vacate its order of August 6, 2010 to the extent it granted real party in interest Keeton’s motion to compel discovery of the three documents discussed in this opinion, and instead enter an order denying Keeton’s motion to compel production of those documents. This court’s October 7, 2010 order staying all further proceedings in this matter is to remain in effect pending finality of this decision. Petitioner SCE is awarded costs.
We concur:, MANELLA, J., SUZUKAWA, J.