Magill v. Superior Court

• Decision Date: 10 January 2001
• Docket Number: No. F035276.,F035276.
• Citation: 86 Cal.App.4th 61,103 Cal.Rptr.2d 355
• Court: California Court of Appeals Court of Appeals
• Parties: Charles F. MAGILL et al., Petitioners, v. The SUPERIOR COURT of the County of Madera et al., Respondents. The People ex rel. Bill Lockyer, as Attorney General, etc., Real Party in Interest.

103 Cal.Rptr.2d 355

86 Cal.App.4th 61

Charles F. MAGILL et al., Petitioners, v. The SUPERIOR COURT of the County of Madera et al., Respondents The People ex rel. Bill Lockyer, as Attorney General, etc., Real Party in Interest.

No. F035276.

Court of Appeal, Fifth District.

January 10, 2001.

As Modified on Denial of Rehearing January 29, 2001.

Review Denied April 25, 2001.^*

Colin J. Kooyumjian, Charles F. Magill, in propria persona, and Timothy V. Magill, for Petitioners.

No appearance on behalf of Respondents.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Carlos A. Martinez and Catherine G. Tennant, Deputy Attorneys General, for Real Party in Interest.

OPINION

ARDAIZ, P.J.

This case involves several issues directly bearing on the attorney-client privilege, including what constitutes a privileged communication, and what constitutes appropriate action by a special master conducting a search of an attorney's office. At the outset we set forth the nature of the issues and our conclusions.

If an attorney takes a photograph of an object that is itself not privileged, is that photograph privileged or may it become privileged because it may lead to disclosure of a client's identity? Under the unusual circumstances of this case, we conclude the attorney-client privilege does not apply.

This case further presents a textbook example of how to execute a search warrant and violate the protections inherent in the special master statute. Indeed, the conduct of the parties herein—the special master, the law enforcement officers, the district attorney's office, and the Attorney General—defeated the very purpose of the statutory scheme that protects the confidentiality of materials prior to a final judicial determination of the application of the attorney-client privilege. In the interest of judicial economy, however, we will decline to initiate sanction proceedings because the costs required to make such findings would outweigh the amount actually imposed. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1126-1127, 75 Cal.Rptr.2d 27.) Instead, we will let the record of this case speak for itself as a rebuke to the parties herein, and as an admonishment to future parties to refrain from such conduct.

STATEMENT OF THE CASE

On March 10, 2000, California Highway Patrol Officer Tom Shepard filed an affidavit in Madera County Superior Court for the issuance of search warrants for the residences and vehicles of petitioners Charles Magill and Myrl Stebens, and for the seizure of all photographs and videotapes of a white Ford cargo van and blue flatbed trailer. On the same day, the trial court issued search warrant Nos. 1289 and 1290, and appointed Steven Mortimer as special master for execution of the search warrants pursuant to Penal Code section 1524.

On March 15, 2000, Special Master Mortimer, accompanied by officers from the California Highway Patrol, executed the search warrants and seized a file from the residence of Myrl Stebens. The file was sealed pending a determination of petitioners' objections that the contents were confidential pursuant to the attorney-client privilege.

On March 20 and 23, 2000, the trial court conducted a hearing pursuant to Penal Code section 1524 to determine whether the contents of the file seized from Stebens's residence were confidential pursuant to the attorney-client privilege.

On March 23, 2000, the court found the videotape and photographs seized from Stebens's residence were not protected by the attorney-client privilege, but the balance of the documents and items in the seized file were confidential and protected from disclosure by the attorney-client privilege. The court ordered the entire file to remain sealed, and stayed the disclosure order pending petitioners' decision to seek further review of the matter.

On March 27, 2000, petitioners Charles Magill, Myrl Stebens, and John Doe filed a petition for writ of mandamus and request for appeal with this court seeking review of the trial court's ruling as to the applicability of the attorney-client privilege to prevent disclosure of the contents of the file seized from Stebens's residence. Petitioners also requested this court to issue an immediate stay of the trial court's ruling.

On March 28, 2000, this court filed an order staying the trial court's disclosure ruling, and ordered the balance of the seized documents, as well as original and copies of notations made concerning said seized materials, to remain sealed pending further order of this court. This court also ordered all parties and their agents to maintain the confidentiality of the information gleaned from the seized documents pending further order of this court, and requested respondents file an informal response.

On April 24, 2000, Real Party in Interest, the People of the State of California (hereinafter Real Party), filed an informal response, supported by exhibits and declarations.

On May 4, 2000, this court ordered that an order to show cause should issue as to why the relief prayed for in the petition for writ of mandamus should not be granted, returnable before this court on October 13, 2000.

On May 16, 2000, this court filed the order to show cause.

On June 9, 2000, Real Party filed a return to the petition for writ of mandamus.

On June 13, 2000, this court denied Real Party's motion to shorten time.

On August 4, 2000, petitioners filed a reply to the return, and requested this court order the informal response and return be placed under seal. Petitioners also requested this court to sanction Real Party for various violations of this court's order which sealed the file pending a determination of the matter.

On August 25, 2000, this court deferred ruling on the sanctions and other relief sought by petitioners pending a determination of the issues raised in the petition for writ of mandamus, or upon further order of this court.

On September 7, 2000, this court ordered the trial court to transfer the sealed file to this court, and to maintain its sealed condition pending further order of this court.

INTRODUCTION

An attorney was retained by a client and asked to investigate the client's possible involvement in a fatal hit-and-run vehicular accident. The client asked the attorney to take photographs of his vehicle, publish the photographs to law enforcement investigators, and find out if they were looking for his vehicle. The client authorized his attorney to make limited disclosures to the investigators, but to keep his identity confidential.

The attorney published the photographs to the investigators but redacted the photographs to prevent disclosure of the vehicle's license plate number. The investigators demanded to speak with the client, but the client refused and continued to instruct the attorney to maintain his anonymity. The investigators then demanded unredacted copies of the photographs in order to determine the vehicle's license plate number and discover the client's identity. The attorney refused to turn over the photographs and a videotape which also depicted the vehicle.

The investigators obtained a search warrant and seized the attorney's file which contained the unredacted photographs, the videotape, and other items which disclosed the client's identity. The attorney asserted the items in his file were confidential communications and independently protected from disclosure by the attorneyclient privilege. The attorney also claimed the client's identity was protected by the attorney-client privilege because disclosure of his identity would lead to criminal investigation or prosecution for the very matter the client retained the attorney. The trial court rejected the attorney's arguments and found the videotape and the unredacted photographs were not privileged materials.

The attorney has filed the instant mandamus proceeding with this court and reasserts his arguments regarding the applicability of the attorney-client privilege. He also contends the contents of the file were improperly disclosed to law enforcement investigators prior to a final judicial determination of the applicability of the attorney-client privilege.

Our factual discussion will be divided into part I, regarding the investigation and the proceedings involving the search warrant and seizure of the attorney's file, and part II, regarding the proceedings herein and the manner in which certain materials in the file were prematurely disclosed.

Our legal analysis will begin with a determination of the appropriate standard of review in this mandamus proceeding. We will discuss the attorney-client privilege and the work product rule, and determine whether the videotape and unredacted photographs are independently protected from disclosure by either of these rules. We will also determine whether a client's identity is a confidential communication within the meaning of the attorney-client privilege, and whether the videotape and unredacted photographs are protected from disclosure because such items would identify the client. Finally, we will determine whether any of the items within the file were improperly disclosed to law enforcement officers prior to a final judicial determination of the applicability of the privilege.

As stated above, we will find the photographs and videotape are not protected from disclosure by the attorney-client privilege. We will also find the special master improperly executed the search warrant and disclosed the contents of the file prior to any judicial determination of petitioners' claim of privilege.

PARTI

THE INVESTIGATION AND THE SEARCH WARRANT PROCEEDINGS

The accident

At 6:30 p.m. on February 15, 2000, a vehicular accident occurred on Highway 41, north of Road 406 in Madera County. There were two fatalities, and the accident was caused by a "hit-and-run" driver. California Highway Patrol (CHP) Officers Tom Shepard and Paul Curtin...