In Citizens for Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al., (filed and published in part by the Fifth Appellate District on July 8, 2013), the petitioner in a CEQA lawsuit sought relief from the appellate court ordering the trial court to require production of thousands of pages of documents that the City refused to add to the administrative record. The City had refused to make the withheld documents part of the record based on various privileges, including those applied by way of the “common interest” doctrine. The Court of Appeal held that the common interest doctrine (derived from Evidence Code §§ 912, 952) did not protect from disclosure preapproval communications between the City and the project applicant, and remanded the case for the trial court to apply this rule. The decision creates a split in authority regarding the application of the common interest doctrine.
In reviewing the City’s assertion of privilege, the Court first found that CEQA, specifically Public Resources Code section 21167.6, which defines the scope of the administrative record, does not abrogate privileges generally, including the attorney-client and attorney work-product privileges. The Court went on to find, however, that the common interest doctrine, which operates to prevent the waiver of attorney-client and work-product privileges when the disclosure of information is necessary to accomplish the purpose for which the legal advice was sought, does not protect agency-applicant communications before project approval.