People ex rel. Lockyer v. Superior Court
| Decision Date | 29 August 2000 |
| Docket Number | No. D035689.,D035689. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE ex rel. Bill LOCKYER, as Attorney General, etc., Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Paul J. Pfingst, as District Attorney, etc., et al., Real Parties in Interest. |
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault, Deputy Attorney General, for Petitioner.
No appearance for Respondent.
Luce, Forward, Hamilton & Scripps, Edward Patrick Swan, Jr. and Guillermo Cabrera, San Diego, for Real Parties in Interest.
This proceeding concerns the extent to which the attorney-client and work product privileges may be used by a public prosecutor who is the subject of an ongoing criminal investigation to prevent documents seized pursuant to validly issued and executed search warrants 1 from being reviewed by law enforcement. In this criminal investigation of real party in interest Deputy District Attorney (DDA) Peter J. Longanbach (Longanbach),2 the People of the State of California, through the Office of the California Attorney General (AG), petition for a writ of mandate/prohibition after respondent Superior Court of San Diego County (the court) upheld Longanbach's privilege claims to certain documents seized pursuant to search warrants issued for specified areas of the DA's office and Longanbach's residence. After conducting in camera reviews under Penal Code3 section 1524, subdivision (c) to ascertain the validity of the claimed privileges for the sealed material taken from each location, the court ordered the privileged documents returned to Longanbach and reappointed a special master to review the contents of computer backup tapes in the DA's possession.
We stayed enforcement of the court's orders in this proceeding, issued an order to show cause (OSC) and now grant the petition in part and deny it in part.
Longanbach is being investigated for possible crimes, including misappropriation of government property (§ 424) and perjury (§ 118), arising out of his employment with the DA's office. It is essentially alleged that he used the resources of the DA's office to further his own personal business interests. As part of the investigation, on February 7, 2000, the California Department of Justice (Justice) obtained search warrants for specified areas of the DA's office, including the office Longanbach occupied as a DDA, Longanbach's home and cars, and for another attorney's office. At the same time, the court signed an "Order for Special Masters for Execution of Search Warrants" pursuant to section 1524, subdivision (c), assigning three special masters, one for each search location.
On February 8, 2000, agents from Justice executed the search warrants at the DA's office and at Longanbach's residence, accompanied by the respective special master assigned for each place. Longanbach was at his office within the DA's office when the agents arrived to search. His attorney, Lynne Lasry, arrived shortly thereafter and remained at the DA's office for the duration of the search, while Longanbach went to his residence with another of his attorneys, Edward Patrick Swan.
During the search of the office Longanbach occupied at the DA's office, claims of privilege were made to various items, identified as Nos. 3100 to 3103, which were then sealed by the special master.4 With the assistance of DDA Patricia O'Mara and/or DDA Paul Morley, the agents seized Longanbach's personnel file and other materials on another floor of the DA's office, including item Nos. 3001 to 3039,5 which were then claimed as privileged by Lasry, taken into possession by the special master and also sealed. Meanwhile, item Nos.1900 to 1904 and 1906 to 1926, seized at Longanbach's home, were claimed as privileged and sealed by the special master there.
On February 14, 2000, the special masters turned over to the court all of the sealed documents and items seized pursuant to the search warrants served on the DA's office and Longanbach's home. DDA Morley advised the court the DA's office was not asserting any rights or privileges at that time regarding the materials seized, and Morley and DDA O'Mara explained that there were problems with obtaining data from the computer software and hardware that were seized. The court continued the matter several days to allow Longanbach to provide specific written claims of privilege, allowing him to reserve any section 1538.5 matters until a later time.
On February 17, 2000, Longanbach filed his written claims of privilege to the sealed items. In addition to asserting the attorney-client privilege as the "client" for documents "prepared for or received from attorneys James P. O'Neill (Nos.1900-1903 and 1910-1917), Lynne Lasry (Nos. 1904, 1906-1907, 1925-1926, 3101 and 3103) and Robert C. Rice (Nos. 1908-1909 and 1918-1923)," Longanbach claimed work product protection for writings he authored relating to legal issues (Nos.1904, 1910-1912, 1914, 1916-1917, 1922-1923, and 1925-1926). He also claimed a compelled statement privilege applied to documents provided to the DA's office during an internal confidential personnel investigation of him, including a response to a demand for information by Assistant District Attorney Greg Thompson, and asserted a blanket privilege claim to item Nos. 3001 to 3039 taken from the DA's office.
At a hearing the same day, after some discussion as to whether Longanbach had any standing to claim privileges with regard to the DA's CD-ROMs, hard drive, and materials printed from them, the court again continued the matter, setting a briefing schedule on the issues of standing and claims of privilege as to the seized material. Before the next contested hearing, the court conducted ex parte in camera hearings on March 22 and April 17, 2000, with Longanbach and his attorneys,6 and thereafter sealed the transcripts of those hearings held to review Longanbach's specific assertions of privilege and/or objections to the items seized, including printouts of two of the DA's CD-ROMs, identified as item Nos. 3105-C and 3104-C.
At the April 21, 2000 hearing, problems with the computer and disc printouts were again noted, and the court requested that DDA Morley cooperate to provide an accurate and complete printout of additional computer materials. The court also commented that the computer material reviewed in camera had contained material sensitive to the internal workings of the DA's office and permitted Morley to claim a limited privacy privilege for the DA's office as to such matters.
On May 5, 2000, the court held a hearing at DDA Morley's request to set up procedures for review of the DA's backup tapes to determine what information was responsive to the February 2000 search warrants. Morley represented that the AG and DA had worked out a procedure to review the computer directories of the five people targeted in the investigation, but that Longanbach's attorney objected, claiming attorney-client and work product privileges to the computer materials. After heated discussion as to the propriety of a former public servant claiming such privileges, in an abundance of caution the court reappointed the special master who had been appointed in connection with the execution of the search warrant at the DA's office, to obtain copies of the backup tapes and present them to the court for in camera review under section 1524. The court also stated it would soon issue its ruling on the claims of privilege made so far and allow the parties 14 days in which to seek writ review before the privileged documents were returned to Longanbach or the DA and the nonprivileged materials turned over to the AG. The court's formal order reappointing the special master was filed May 8, 2000, and its order ruling on the objections and claims of privilege made thus far was filed May 12, 2000.
The AG filed the instant petition for mandate and prohibition on May 25, 2000. In addition to granting a stay of enforcement of the court's May 8 and 12, 2000 orders, we directed the court to provide us with the sealed reporters' transcripts from the ex parte in camera review hearings held on March 22 and April 17, 2000, and all documents seized pursuant to the search warrants executed on February 8, 2000, for which Longanbach claims privilege. After reviewing the matter,7 we issued an OSC, requesting the parties specifically to address, among other things, the following two questions:
Supplemental briefs responsive to the above questions have been...
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