City Of Ceres: California Appeals Court CEQA Decision Complicates Whether Agencies’ Communications With Developers Are Privileged

by Elizabeth A. Lake and Spencer B. Potter : mondaq – excerpt

On July 8, 2013, the Fifth District of the California Court of Appeal issued Citizens for Ceres v. Super. Ct. of Stanislaus County (Case No. F065690 (Cal. Ct. App. 5th, July 8, 2013)) (Ceres), a perplexing opinion holding that pre-project approval communications between the agency conducting California Environmental Quality Act (CEQA) review and the project applicant are not protected by the attorney-client privilege. Ceres disagrees with California Oak Foundation v. County of Tehama (Tehama), 174 Cal.App.4th 1217 (2009), an important 2009 Third District decision that held that communications between agency and project applicant lawyers were protected under the attorney-client privilege’s “common interest doctrine.” The Ceres case expressly disagrees with Tehama to the extent the Third District opinion has been interpreted to be applied the attorney-client privilege prior to project approval…

The Common Interest Doctrine and the Tehama Case
The attorney-client privilege and work product privilege is usually waived for information voluntary disclosed to a third party. Under the California Evidence Code, however, the “common interest doctrine” preserves the privilege when an attorney’s discloses to a third party information reasonably necessary to accomplish the purpose for which the lawyer was consulted. The common interest doctrine typically requires that the attorney and the third party possess a common interest in a matter of joint concern… (more)

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