Attorney-Client Privilege Redactions Impliedly Waived In Malicious Prosecution Case.
Jensen v. Charon Solutions, Inc., Case No. B276050 (2d Dist., Div. 2 Dec. 20, 2017) (unpublished) is a situation which demonstrates that redacted fee substantiation, even based on attorney-client privileged objections, may give way to due process rights where fees are recoverable as damages. What happened here is that a malicious prosecution plaintiff obtained over $400,000 in fees although submitting substantiating proof which redacted “every line of content for the underlying fee bills.” That did not resonate well on appeal notwithstanding an adverse adjudication in the lower court. The 2/2 DCA panel viewed the attorney-client privilege, in a context where malicious prosecution damages were sought, as a shield but not a sword—and it was a sword in this instance. Because the malicious prosecution claim impliedly waived the privilege as far as damages, it required a reversal and remand to allow the defense to obtain the redacted information so that they could properly defend against damages in the malicious prosecution case.