UNDERSTANDING KEY DISTINCTIONS IN CALIFORNIA STATE AND FEDERAL PRIVILEGE LAW

Written by Rachel Naor^* & Michael Lundholm^*

Litigants often propound discovery requests seeking production of attorney invoices, retainer agreements, and client tax returns. Whether or not these sensitive documents must be produced — or whether they can be withheld as privileged — depends on the forum and whether state or federal privilege law applies. This article seeks to assist attorneys who litigate in California state and federal courts by identifying the key differences in how state and federal privilege law applies to these types of documents.

LEGAL INVOICES

In the Ninth Circuit, invoices from an attorney to a client containing "information on the identity of the client, the case name for which payment was made, the amount of the fee, and the general nature of the services performed" are not privileged and are thus subject to disclosure. (Clarke v. Am. Com. Nat. Bank (9th Cir. 1992) 974 F.2d 127, 130.) But invoices can be privileged if the entries provide information beyond the general nature of the services performed and include descriptions that reveal specific research, client motive, or litigation strategy, such as billing entries revealing that an attorney researched particular areas of law. (Ibid.)