By Leslie Walker

In California Oak Foundation v. County of Tehama et al. 2009 Cal. App. LEXIS 923, the California Oak Foundation (“COF”) challenged Tehama County Board of Supervisors’ (the “County”) approval of the Sun City Tehama Specific Plan and EIR.  The Sun City Tehama Specific Plan is a 3,320 acre residential and commercial development adjacent to Interstate Highway 5 between Red Bluff and Redding. In an unpublished portion of the opinion, the Court of Appeal for the Third Appellate District addressed COF’s claims that the EIR inadequately mitigated for the project’s impacts to Blue Oak Woodlands and traffic. In the published portion of the opinion, the Court affirmed the trial court’s denial of COF’s motion to include privileged documents in the administrative record.

COF had requested that the trial court compel the County to include four attorney-client privileged documents, claiming Public Resources Code section 21167.6 overrides claims of privilege and disclosure of the documents to counsel for the real parties in interest constituted a waiver of privilege. The appellate court stated that section 21167.6 is not an abrogation of the attorney-client privilege or work product privilege.  A new statute is not construed to repeal an existing statute unless it is clear that the later enactment is intended to supersede the existing law.

COF claimed that the County waived the attorney-client privilege when it disclosed the privileged documents to the real parties in interest.  The common interest doctrine extends the attorney-client privilege to communications which are intended to be confidential, if they are made to attorneys, family members, business associates, or agents of the party or his attorneys on matters of joint concern, when disclosure of the communication is reasonably necessary to further the interest of the litigant.  (Insurance Co. of North America v. Superior Court (1980) 108 Cal.App.3d 758, 767.)  According to COF, the common interest doctrine was inapplicable to the County’s communication to real parties in interest because the County and the real parties had different purposes: compliance with CEQA as compared to defense of the permits.  The Court found this distinction “too crabbed” and held that the disclosure did not constitute a waiver because,

“A disclosure in confidence of a communication that is protected by [Evidence Code] Section 954 (lawyer-client privilege) . . . , when disclosure is reasonably necessary for the accomplishment of the purpose for which the lawyer . . . was consulted, is not a waiver of the privilege”.  (Evid. Code, § 912, subd. (b).)

The Court found that disclosure to a co-defendant in a joint endeavor to defend the EIR in litigation can reasonably be said to constitute the involvement of a third person to whom disclosure is reasonably necessary to further the purpose of the original legal consultation and thus the communications remained protected.

Leslie Z. Walker is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.