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 Fourth Appellate District held that the litigation privilege does not bar an invasion of privacy claim where private information was illegally acquired, altered and disseminated.
In Randall, defendant attorneys represented a party seeking custody of a minor. The attorneys and their client obtained access to restricted criminal records, altered some information and forwarded the information to individuals involved in the proceedings.
The Court acknowledged the Silberg decision holding the privilege absolute, but noted that the decision in Kimmel v. Goland (1990) 51 Cal.3d, 202, made a distinction between communicative conduct that is protected by the privilege and non-communicative conduct, which is not. The court also relied on Susan S. v. Israels (1997) 55 Cal.App.4th, 1290, which held that an attorney’s conduct in reading and disseminating a criminal prosecution victim’s mistakenly obtained mental health record was non-communicative conduct not protected by the litigation privilege.
Interpreting Jeffrey H. as requiring a balancing of the interests protected by constitutional right to privacy against the litigation privilege, the Court nonetheless did not adopt as broad an approach as the First District’s in Jeffrey H. Relying on Kimmel, the court held that the balancing would consider only the communicative/non-communicative nature of the alleged invasion. Finding that Randall’s privacy was invaded when the criminal records were improperly obtained, not when the records were communicated to others, the court held that all claims related to obtaining possession of, disseminating and altering the records survived the litigation privilege.
Comment: The ruling, which purportedly was limited to defendants’ “non-communicative” conduct, nonetheless included the act of disseminating records to others within its scope. This inconsistency puts whether courts will be able to make any clear distinction between communicative and non-communicative conduct in their “balancing” in question.