2018-00233619-CU-OE

Cynthia L. Curry vs. California Department of Conservation

Nature of Proceeding: Motion for Order Sealing Record

Filed By: Goodman, Karen M.

Plaintiff Cynthia Curry’s motion to seal portions of her first amended complaint is denied without prejudice.

Plaintiff’s request for judicial notice is granted.

In this action, Plaintiff, a former staff attorney for Defendant California Department of Conservation, alleges that she was terminated in retaliation for disclosing potentially unlawful and/or wasteful matters. By way of background the Court sustained Defendant’s demurrer to her cause of action for violation of the California Whistleblower Protection Act (“WPA”) on the basis that she had not sufficiently alleged any protected activity. Defendant argued that Plaintiff could not amend the complaint without violating the attorney-client privilege. The Court recognized that relevant case law indicates that where a plaintiff cannot fully establish his or her case without breaching the privilege, dismissal is appropriate. (General Dynamics v. Superior Court (1994) 7 Cal.4th 1164, 1190.) However, the Court noted that such a determination is “rarely if ever appropriate” at the pleading stage. (Id. at 1170.)

General Dynamics advised that “the trial courts can and should apply an array of ad hoc measures from their equitable arsenal designed to permit the attorney plaintiff to attempt to make the necessary proof while protecting from disclosure client confidences subject to the privilege. The use of sealing and protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and where appropriate, in camera proceedings, are but some number of measures that might usefully be explored by the trial courts as circumstances warrant.” (Id. at 1091.) To that end, this Court sustained Defendant’s demurrer with leave to amend and indicated that Plaintiff could file the amended complaint conditionally under seal and file a motion to seal is needed to protect client confidences. (ROA 13)

Plaintiff lodged the first amended complaint conditionally under seal and now brings a motion to seal. Plaintiff indicates that she seeks to seal portions of the FAC which refer to her specific advice to Defendant which she claims was the basis for Defendant’s alleged retaliation.

In order to issue the requested order, the Court must find that there is an overriding interest to support the sealing of these records; that there is a substantial probability that the parties’ interest will be prejudiced absent sealing; that the proposed sealing is narrowly tailored to serve the parties’ interest; and that there is no less restrictive means of achieving the overriding interest. (See In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292; CRC 2.550(d).)

Here, the Court agrees with the proposition, in the abstract, that an overriding interest supports the sealing of information which consists of attorney-client privileged information. The problem here, however, is that Plaintiff has simply lodged the entire FAC under seal without filing a redacted public version of the FAC. Under these circumstances, the Court cannot find that the proposed sealing is narrowly tailored as required by the Rules of Court. While the motion indicates that the proposed redactions are highlighted on the FAC lodged conditionally under seal, this is no help to plaintiff. Indeed, she makes clear that the FAC contains attorney-client protected information. This Court is not permitted to review the document as a result. In fact, it is error for a trial court to order in camera disclosure of allegedly privileged information to evaluate a claim of privilege. (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 736-737.) Indeed, Evid. Code § 915 prohibits a court from reviewing an allegedly privileged attorney-client communication to determine whether it is privileged because the nature of the attorney-client privilege requires absolute protection for all confidential communications between an attorney and a client regardless of their content. Absent waiver, Courts do not have the power to create exceptions to section 915’s mandate. (Costco, supra, at p. 739.) The court therefore may not review the content of the communication to determine whether it is privileged. It would thus be error for this Court to review the FAC lodged conditionally under seal especially in light of Defendant’s strenuous opposition arguing that the Court cannot review the document. In reply Plaintiff argues that the information sought to be sealed may have been waived by Defendant such that Costco does not apply and the Court should seal the FAC pending a determination of such waiver. The attorney-client privilege, however, may be waived only by the holder of the privilege. (§ 912, subd. (a).) As may be relevant, the holder is the client, a guardian or conservator of the client, or the personal representative of the client if the client is deceased. (§ 953.) Plainly, defendant does not concede waiver. But even Costco made clear that a Court cannot require disclosure of the actual communication claimed to be privileged in order to rule

on whether the privilege has applied or has been waived. (Id. at 737-739.) Just as the Court cannot order in camera inspection of documents to determine if they are subject to a privilege, this Court cannot simply review the conditionally lodged FAC containing information the parties agree is privileged (unless waived) to see if sealing is appropriate. On this basis alone, the motion is denied without prejudice as the Court has no way on the current record to evaluate whether the proposed sealing is narrowly tailored. In any further motion, Plaintiff must file a redacted version for the Court’s review. A filed redacted version will permit the Court to determine whether the proposed sealing is narrowly tailored.

Separate from the above, the motion must be denied without prejudice for failure to comply with CRC Rule 2.551(b)(1) which requires that “any party that already has access to the records to be placed under seal must be served with a complete, unredacted version of all papers as well as a redacted version.” (CRC Rule 2.551(b)

(1).) Defendant is the holder of the privileged communications and thus already has access to the information to be sealed and was required to be served with a complete unredacted version of the FAC. Yet as seen from Defendant’s opposition, Plaintiff did not serve that document until after business hours the night before Defendant’s opposition was due. Defendant did not have an opportunity to review the document prior to filing the opposition. (Koenigsberg Decl. ¶¶ 2, 3.)

Defendant also argues that sealing will yield an unworkable result. Defendant argues that if the FAC is sealed, it will not be able to defend against the allegations and it would be forced to disclose and discuss protected communications to defend against the FAC. Further it questions how the Court can rule on any challenge to the pleading which has been sealed when the Court itself cannot view the privileged communications. Nonetheless, these are questions for another day. Indeed, in the event that the scenarios posited by Defendant arise, and Plaintiff cannot fully establish her claims without disclosing confidential communications, she may not be able to proceed. (General Dynamics, 7 Cal.4th at 1190.) Though as Plaintiff indicates in reply she intends to argue that the privilege has been waived. Again, these are not questions for today.

In short, the motion is denied without prejudice. The FAC lodged conditionally under seal will remain under seal pending a further motion to seal by Plaintiff.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.