Privileges and Waivers and Records, Oh My!

By Mike H. Zischke, Alex M. DeGood, and Linda C. Klein*

I. INTRODUCTION

California public agencies approving controversial projects and defending them in litigation often face disputes about the scope of the administrative record, and in particular, whether the record must include communications between the project applicant and the agency, and between their respective attorneys. They also face disputes about whether the record must include documents from agency consultants and sub-consultants. Resolving these disputes often involves determining whether documents are confidential pursuant to the attorney-client privilege or the work product doctrine, and whether the non-waiver common interest doctrine applies.

Agencies have wide discretion to determine a project applicant’s level of involvement in the environmental review process. Some agencies maintain an open door; for example, they share screen check drafts of environmental documents and seek applicant input throughout the process. Some agencies allow or require the applicant to hire its own environmental consultant to produce the environmental document, which is then submitted to the agency for review. Other agencies treat the project applicant like any other community member, and at most, have the project applicant review only the project description for factual errors. The California Environmental Quality Act ("CEQA") permits all these approaches, as long as the lead agency independently reviews and analyzes the CEQA document.¹