Costco Wholesale Corp. v. Superior Court - 47 Cal. 4th 725, 101 Cal. Rptr. 3d 758, 219 P.3d 736 (2009)

Rule:

The attorney-client privilege attaches to a confidential communication between the attorney and the client and bars discovery of the communication irrespective of whether it includes unprivileged material. The privilege covers the transmission of documents which are available to the public, and not merely information in the sole possession of the attorney or client. In this regard, it is the actual fact of the transmission which merits protection, since discovery of the transmission of specific public documents might very well reveal the transmitter's intended strategy. Neither the statutes articulating the attorney-client privilege nor the cases which have interpreted it make any differentiation between factual and legal information.

Facts:

In a labor law class action, the trial court issued an order requiring in camera review of an opinion letter written by the employer's attorney and ordering disclosure of a redacted version of the letter. The employer had retained the attorney's firm to provide legal advice as to whether certain employees were exempt from California's wage and overtime laws. After discussing the matter with two employees in conversations that were understood to be confidential, the attorney wrote an opinion letter. In subsequent litigation as to whether some employees had been misclassified as exempt, discovery of the letter was sought. The Court of Appeals denied the employer’s petition for extraordinary relief. 

Issue:

1. Did the attorney-client privilege attach to the attorney’s opinion letter? 
2. Did the trial court err in ordering a camera review of the attorney’s opinion letter? 

Answer:

1) Yes. 2) Yes.

Conclusion:

The Supreme Court reversed the judgment of the Court of Appeal and remanded to that court with directions to issue a writ of mandate vacating the trial court's discovery order and to remand the case to the trial court for further proceedings. The court held that the attorney-client privilege codified in Evid. Code, § 954, attached to the attorney's opinion letter in its entirety because the opinion letter was a confidential communication as defined in Evid. Code, § 952, irrespective of whether it included unprivileged material. Because Evid. Code, § 915, prohibited a trial court from ordering disclosure of a communication claimed to be privileged in order to rule on the claim of privilege, the trial court erred in ordering that the opinion letter be reviewed at an in-camera hearing. Moreover, because the discovery order wrongfully invaded the attorney-client relationship, the employer did not have to establish that its case would be harmed by disclosure of the evidence in order to obtain extraordinary relief.