Procedural Posture

Appellant gas company sought review of a decision of respondent Public Utilities Commission (California), which ordered appellant to produce documents claimed privileged by appellant or withdraw its application for a consolidated adjustment mechanism proceeding.

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Overview

Appellant gas company entered into a long-term requirements contract for the supply of gas from a gas producer. Appellant informally requested permission from respondent public utilities commission to negotiate a buyout to escape from the contract. Respondent’s division of ratepayer advocates sent a data request to appellant seeking notes and memoranda taken by appellant’s legal staff regarding the negotiations. Appellant refused to provide the information and applied for a formal consolidated adjustment mechanism proceeding. In that proceeding respondent requested discovery of documents with legal analysis regarding the contract. Appellant refused to comply, and respondent ordered it to submit the documents or withdraw the application. The court held that the attorney-client privilege applied in respondent’s proceedings. The court also held that there was no implied waiver because appellant did nothing to place in issue its privileged communications. The court found that there was no express waiver under Cal. Evid. Code § 912 because appellant did not disclose a significant part of any communication. Therefore, the court vacated the decision of respondent.

Outcome

The court vacated the decision of respondent public utilities commission requiring appellant gas company to produce privileged documents because the attorney-client privilege applied to respondent’s proceedings and because there was no implied or express waiver of the privilege.