Discovery,  Privilege,  Writ Practice,  Writ Review

Writ Review Appropriate where Discovery Ruling Threatens Privilege

You’ve seen me complain before about the court of appeal reviewing writ petitions on the merits without saying why.  After all, there has to be something special in every instance of review, as more than 90% of writ petitions are summarily dismissed.

Ombudsman Services of Northern California v. Superior Court, case no. C054737 (3d Dist. Sept. 5, 2007), the court is very explicit about why it reviewed the writ petition on the merits (citations omitted):

“Although writ review of discovery rulings is generally disfavored, interlocutory review by writ is the only adequate remedy when, as here, a court compels the disclosure of documents or information that may be subject to a privilege, because ‘once privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.’ [Citation.]”  Writ review is particularly appropriate here to protect the confidential records of third persons who are not parties to the underlying litigation below, who have had no notice of the ordered disclosure, and who, as a result, have had no opportunity to object. OSNC properly asserted the privacy rights of those third persons affected by the discovery order of the trial court.

It figures that the court of appeal would be very explicit in a case where the reason for review would probably have been rather obvious without the explanation.  But I won’t look a gift horse in the mouth.  Instead, I shall just politely ask: “More of this, please.”