Attorney Billing Records For Pending Litigation Are Generally Not Exempt From Disclosure
The California Public Records Act (CPRA) contains an exemption from disclosure for records pertaining to pending litigation. This exemption has been construed narrowly, so that it applies only to documents prepared for use in litigation. Other records that relate to a pending case, even if they are created only as a result of a pending case, are subject to disclosure unless another exemption applies.
The scope of the CPRA’s pending litigation exemption was clarified in the recent case of County of Los Angeles v. Superior Court of Los Angeles County. The County of Los Angeles claimed that all invoices, time records, and records of payment to law firms in a case currently in litigation were exempt from disclosure under the pending litigation exemption. The Court of Appeal rejected this claim and clarified that attorney billing records pertaining to ongoing litigation are not protected by the pending litigation exemption.
While attorney billing records are not entirely exempt from the CPRA, certain information in those records may still fall within other exemptions. For example, billing records can reveal the nature of legal advice and other communications from attorney to client, and that type of information is generally exempt from disclosure because it is protected by the attorney-client privilege. Billing records relating to litigation can also reveal an attorney’s thought processes and mental impressions, and that sort of information is generally protected from disclosure by the attorney work product doctrine.