Marylander

Introduction

A defendant in pending civil litigation seeks to compel discovery from a state agency of records that are relevant to his defense in the underlying case. The records are memoranda from the state agency to the Governor’s Office. The trial court denied a motion to compel production, agreeing with the state agency that such memoranda are absolutely privileged on the grounds that correspondence to the Governor is exempt from disclosure as a public record, and a common law “deliberative process” privilege absolutely protects such interoffice communications in order to facilitate candid advice and disclosures to the Governor. We hold the trial court erred, because the applicable privilege is not absolute but conditional under Evidence Code section 1040, subdivision (b)(2), which required the trial court to consider the party’s need for disclosure in the interest of justice, and to determine whether that interest is outweighed by the public interest in preserving confidentiality. We direct the trial court to conduct further proceedings in accordance with Evidence Code section 1040.

Factual and Procedural Background

Petitioner Stuart J. Marylander is the defendant…