Litigation Topics: Confidentiality & Privilege

In Fireman’s Fund Insurance Company v. Superior Court, the California Court of Appeal for the Second Appellate District issued a strong opinion affirming the attorney-client and work-product privileges.

In brief, the court ruled that the attorney-client privilege does not merely cover communications from an attorney directly to the client, but also conversations between attorneys who may be representing the client.

A recent case underscores the need to keep private communications private.  In Holmes v.

One of the hottest issues these days is whether an employee has a right of privacy with respect to personal email and/or text messages sent while at work. The use of email and text messaging to communicate with family members and friends is a commonplace occurrence, especially during working hours. The phenomenon is not only due to the relative ease of this mode of communication. It is also a byproduct of the ready availably of convenient hand-held devices such as the I-phone, Blackberry, and similar equipment.

In Mohawk Industries v. Carpenter, the U.S. Supreme Court held that there is no right to appeal from an interim court order requiring disclosure of information covered by the attorney-client privilege. Of course, a party can pursue the issue in a post-judgment appeal, but by that time the cat may be well out of the bag: the privileged information may have been turned over to the other side – and used by the other side – long ago. As the saying goes, it’s hard to unring the bell.

California law protects an attorney’s “work product” from discovery by the other side. The purpose of the privilege is to shield an attorney’s thoughts and impressions about a given case; an opponent can discover evidence, but not what the opposing attorney is thinking.

When parties participate in mediation, all statements made in the course of the proceedings are privileged and cannot become evidence in a later case. This is the essence of Evidence Code section 1119 which sets forth the “mediation privilege.” The privilege covers oral statements and documents that are prepared for and utilized during the mediation, but does not cover normal evidence that might be discussed at the mediation.

Pretrial Order Compelling Disclosure of Attorney-Client Communication Not Subject to Immediate Review

The attorney-client privilege protects confidential communications between clients and attorneys. It is a vital legal doctrine that is designed to foster open and frank dialogue without fear that third parties will later be able to discover the conversation, discussion or written exchange of information between the lawyer and the client.