Three separate districts have taken three different approaches to the applicability of the litigation privilege to constitutional invasion of privacy claims. The first district ruled that the privilege cannot be applied without balancing the interests served by the litigation privilege against the constitutional right to privacy. The fourth district ruled that the interests should be balanced to ascertain whether the alleged invasion of privacy involves communicative or non-communicative conduct. The third district held that the litigation privilege is absolute, even in the context of a constitutional invasion of privacy claim.
The First District Court of Appeal has held that a balancing of interests is required prior to application of the Civil Code § 47 litigation privilege to constitutional claims.
In defending a personal injury case, the Imai, Tadlock & Keeney law firm inadvertently obtained access to medical records revealing plaintiff Jeffrey H.’s HIV status. The Imai firm disclosed the contents of those records in an arbitration brief though the plaintiff specifically instructed them to keep the records confidential. Plaintiff then filed a complaint against the attorneys alleging invasion of his constitutional right to privacy.
The appellate court revisited its decision in Cutter v. Brownbridge (1986) 183 Cal. App. 3d 836, which weighed a plaintiff’s constitutional right to privacy against the interests promoted by the litigation privilege. In spite of the subsequent California Supreme Court decision in Silberg v. Anderson (1990) 50 Cal. 3d 205, which held that the litigation privilege is absolute, the First District determined that Cutter had continuing vitality because Silberg did not consider or analyze a constitutional claim.
For all practical purposes, Jeffrey H. eliminates the possibility of prevailing on demurrer on a litigation privilege defense against constitutional invasion of privacy claims. Common law invasion of privacy claims are still barred by the litigation privilege.