The Second District holds that the litigation privilege will not bar invasion of privacy claims in the litigation context for non-communicative conduct. However, there is no cause of action for invasion of privacy where confidential records are obtained through legitimate court process.
Jeffrey Manning Carlton retained Douglas Otto, Edward George and Armand Arabian (Otto) to represent him when he was charged with assault and battery against Katherine Mansell. Otto subpoenaed Mansell’s medical records including psychiatric records. When the hospital informed Otto the records could only be produced by court order, he applied ex parte for an order directing release of the records sought in the subpoena.
The supporting declaration mentioned only medical records, but attached the subpoena requesting both medical and psychiatric records. The trial court signed an order directing release of all medical records from the hospital to the court. The court turned them over to the prosecutor who made copies and turned them over to Otto who reviewed them. The trial court granted the prosecutor’s subsequent request for return of all medical records but found that the court had not been “duped” into granting the original order.
Mansell filed a complaint alleging a violation of her constitutional right to privacy. The trial court sustained Otto’s demur based on the litigation privilege.
On appeal the Court found that a privacy claim that involves non-communicative conduct is not barred by the litigation privilege. The court reasoned that the Supreme Court has drawn a distinction between privileged communicative acts and unprivileged non-communicative conduct.
The court found that the reading and disseminating of privileged materials alone is not sufficient for an invasion of privacy claim because attorneys typically read privileged and confidential documents in the course of litigation.
A review of all cases of litigation-related invasion of privacy claims demonstrates that the offending party failed to seek judicial review prior to reading and disseminating confidential records. The lack of judicial oversight and the voluntary disclosure of confidential materials combined to rise to the level of actionable claims for invasion of privacy.
In addition, Mansell’s records were not delivered directly to Otto but to the court, who released the records to the prosecutor who, in turn, provided copies to Otto. The trial court in the criminal matter was under no legal compulsion to review Mansell’s records in camera to determine which, if any, of the records could be released to counsel. It was the prosecutor’s obligation to protect the alleged crime victim’s right of privacy prior to the release of the records because Mansell had no standing in the criminal proceedings to do so herself. The prosecutor could have moved to quash the subpoena or objected to release of appellant’s mental health records prior to a full hearing and judicial determination of which records were material to the defense sufficient to overcome appellant’s privacy interests.
The facts establishing a judicial imprimatur distinguished Mansell’s claim from other actionable claims of invasions of privacy claims in the context of litigation.
Comment: Mansell is welcome relief from potential invasion of privacy claims in the litigation context. To preclude such claims, the practitioner should obtain confidential records through the normal subpoena process, obtaining a court order if necessary. Obtaining confidential information informally could lead to actionable invasion of privacy