What is privileged information in discovery?

Learn when to assert privilege in discovery and when to compel discovery when a party asserts privilege.

By Brad Nakase, Attorney

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Scope of Permissible Discovery: Non-Privileged Information

The key limitation in the scope of permissible discovery is that the information sought must not be privileged. Discovery is allowed for “any matter, not privileged, that is relevant to the subject matter,” etc. [CCP § 2017(a)]

General Privileges in Discovery

Protected information under evidentiary privilege at trial is generally shielded from discovery. This includes standard privileges as defined in the Evidence Code:

  • Domestic violence victim-counselor (Civil Code §§ 1037.5, 1037.6)
  • Trade secrets (Civil Code § 1060)
  • Secrecy of political ballot (Civil Code § 1050)
  • Official records (Civil Code § 1040)
  • Spousal communications (Civil Code § 980)
  • Physician-patient (Civil Code § 990)
  • Psychotherapist-patient and educational psychologist-patient (Civil Code § 1010 and § 1010.5)
  • Clergy-penitent (Civil Code § 1030)
  • Sexual assault victim-counselor (Civil Code § 1035.8)
  • Self-incrimination (Civil Code § 940)
  • Attorney-client (Civil Code § 950)

Limitations on Privileges and Exceptions

(1) Courts are not empowered to create new privileges beyond those listed in the Evidence Code [Valley Bank of Nevada v. Sup.Ct. (Barkett); Cloud v. Sup.Ct. (Litton Industries, Inc.)] (2) Courts cannot create exceptions to statutory privileges that are not provided by statute [University of So. Calif. v. Sup.Ct. (Comeau)]

(3) Claiming privilege to avoid disclosing essential facts may bar a party from asserting certain claims or defenses at trial [Steiny & Co., Inc. v. California Elec. Supply Co.; Fremont Indem. Co. v. Sup.Ct. (Sharif)]

Absolute Protection Under Privilege

Where a privilege applies, information is absolutely protected from disclosure, barring waiver. The court cannot balance the privilege against the need for the information. Disclosure of privileged information cannot be compelled to rule on the claim of privilege [Rittenhouse v. Sup.Ct. (Board of Trustees); Southern Calif. Gas Co. v. Public Utilities Comm’n]. This contrasts with “qualified protection” for other types of information, where disclosure may be compelled under certain conditions.

Particular Privileges in Discovery

A civil litigation lawyer must know the particular privileges that are protected:

(1) Tax Returns: Taxpayers have a privilege to withhold disclosure of their federal and state tax returns and the information contained within. This privilege facilitates tax collection by encouraging truthful tax returns but is not absolute [Webb v. Standard Oil Co.; Schnabel v. Sup.Ct. (Schnabel)].

(2) Official Records and Information: Various types of official records and information are protected to some degree, balancing public interest in confidentiality against the interest of justice in full disclosure [County of Orange v. Sup.Ct. (Wu); Davis v. City of Sacramento].

(3) Trade Secrets: Trade secret owners have a privilege to prevent disclosure, subject to the court’s discretion to order disclosure to prevent fraud or injustice [Bridgestone/Firestone, Inc. v. Sup.Ct. (Rios)].

(4) Self-Incrimination: The privilege against self-incrimination can be claimed in discovery proceedings. However, asserting this privilege may have consequences in civil litigation [Zonver v. Sup.Ct. (Zonver); Warford v. Medeiros].

(5) Attorney-Client Privilege: Communications between a client and attorney are broadly protected, regardless of the nature of the communication [Mitchell v. Sup.Ct. (Shell Oil Co.); Mylan Laboratories, Inc. v. Soon-Shiong].

Procedure for Claiming Privilege

To claim a privilege, a party must object to the discovery request, specifying the privilege. This shifts the burden to the party seeking discovery to challenge the privilege claim [Monarch Healthcare v. Sup.Ct. (Cassidenti)]. Courts cannot require in camera disclosure of privileged content to decide on the privilege claim, except in specific circumstances [Southern Calif. Gas Co. v. Public Utilities Comm’n].

Waiver of Privileges

(1) Privileges can be waived through disclosure or failure to timely claim the privilege [Evid Code § 912(a); Korea Data Systems Co. Ltd. v. Sup.Ct. (Amazing Technologies Corp.)].

(2) Implied waiver occurs when privileged communications are placed directly at issue, and disclosure is essential for a fair adjudication [Kaiser Found. Hosps. v. Sup.Ct. (Smee); Mitchell v. Sup.Ct. (Shell Oil Co.)].

(3) A waiver by one joint holder of a privilege does not affect others’ rights to claim the privilege [Evid Code § 912(b)].

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