State High Court So Decides in a 4-3 Decision.
California Supreme Court. Wikipedia. Public domain work.
In a case which may have some implications on billing substantiation submitted in support of fee motions, the California Supreme Court—in a California Public Records Act case—decided on a 4-3 vote that the attorney-client privilege does not categorically shield from PRA disclosure billing invoices sent by clients in concluded, nonactive cases because legal consultation was not the purpose of the invoices. However, our state high court did conclude that the privilege did protect billing invoice entries in active, pending cases. Justice Cuellar wrote the majority decision, but Justice Werdeger penned a dissent concluding the privilege covered billing invoices for both situations (a dissent joined in by two other sitting colleagues). The case is L.A. County Bd. of Supervisors v. Superior Court, Case No. S226645 (Cal. Supreme Court Dec. 29, 2016).
BLOG OBSERVATION—It will remain to be seen how this decision will be interpreted in the fee billing substantiation area for fee motions. We would suggest that an argument could be made that the merits have been terminated in some prevailing party’s favor by the time the fee proceeding is commenced (so the privilege does not categorically apply), but the counterargument is that many times both the merits of a case and the subsequent fee decision are appealed as well as frequently consolidated for consideration (meaning the case is still active and the privilege does apply). Of course, this does not prevent the fee claimant from submitting detailed billings with prudent redactions of the billing statements.