A Pitchess Affidavit May Be Filed Under Seal When Necessary to Protect the Attorney-Client and Work Product Privileges
In Garcia v. Superior Court, the California Supreme Court held that a trial court may permit a defendant to file a Pitchess affidavit under seal if the trial court determines that such a filing is necessary to protect the attorney-client and work product privileges. The Court recognized that nothing in the relevant Pitchess statutes precludes a filing under seal and the trial court has inherent discretion to allow documents to be filed under seal in order to protect against the disclosure of privileged information. However, the Court acknowledged that a trial court is not "'bound by defendant's naked claim of confidentiality'" and they must carefully weigh the competing concerns of a defendant's interest in protecting privileged information against opposing counsel's right to effectively challenge the discovery motion.
To that end, when a defendant wishes to file a Pitchess affidavit under seal the Court outlined a procedure which should be followed. First, defendant's counsel should give "proper and timely" notice of the privilege claim and provide the trial court with the affidavit the defense seeks to file under seal, along with a proposed redacted version. Second, the proposed redacted version should be served on opposing counsel. Third, the trial court must conduct an in camera hearing with defense counsel where counsel explains how the information proposed for redaction would risk disclosure of the privileged material if revealed and demonstrate why that information is required to support the motion. Fourth, opposing counsel should have an opportunity to submit questions for the trial court to ask in camera. Lastly, if the trial court concludes that parts of the affidavit do not pose a risk of revealing privileged information and the filing under seal is the only feasible way to protect the required information, the court may allow the affidavit to be filed under seal.
The Court also held that when a Pitchess affidavit is filed under seal an unredacted version may not be released to opposing counsel under a protective order because the mere disclosure of client confidences and attorney work product to a third party would violate the attorney-client and work product privileges. Thus, the Court disapproved that portion of the holding in City of Los Angeles v. Superior Court (Davenport)(96 Cal.App.4th 255 (2002)) which permitted this practice. Finally, the Court recognized that in the aftermath of Warrick v. Superior Court (35 Cal.4th 1011 (2005)), a litigant in the vast majority of cases will be able to obtain Pitchess discovery without revealing privileged information and filing under seal will usually be unnecessary.