$3MM Judgment Reversed for Improper Questioning into Privileged Matter, and Failing to Give Mandatory Jury Instruction Under Evid. Code, § 913

Timothy Kowal, Esq.
  •  
December 11, 2020

If you question witnesses at trial close to the line of privileged communications, be sure the judge gives the mandatory instruction, if your adversary asks for it, against drawing improper inferences under Evidence Code § 913. Also, asking about a client's intent in communicating with counsel is no different than asking about the communications themselves.

Those are the lessons from Carroll v. Comm’n on Teacher Credentialing (D3 Oct. 23, 2020) No. C083250 (https://www.courts.ca.gov/opinions/documents/C083250.PDF).

Plaintiff, then an employee of the California Commission on Teacher Credentialing, reported the Commission had a backlog of cases of teacher misconduct, including serious discipline cases that had not been reviewed for two years. Plaintiff called the state whistleblower hotline, and the Joint Legislative Audit Committee authorized an audit. The Commission fired plaintiff. The audit confirmed plaintiff's claims, as well as findings of nepotism, favoritism, and that other staff at the Commission feared retaliation. (Nice place.)

At trial, plaintiff's counsel sought to establish the defendants held meetings with HR legal to discuss firing plaintiff. Over the Attorney General's objections (which struck me as inadequate, but my impression is of no moment), the trial court allowed counsel to ask defendants why they sought legal counsel. When defendants denied it was to retaliate against plaintiff, counsel asked whether they sought counsel because they wanted to give plaintiff a raise? (no) or a promotion? (no) or a bigger office? (no). The Attorney General asked the trial court to give the jury an instruction under Evidence Code § 913, that the jury may not draw any inferences from the assertion of privilege. The trial court refused.

The jury awarded plaintiff $3 million.

The Third District reversed the judgment. The requirement to give an instruction under Evidence Code § 913 is mandatory. The privilege may not be avoided by inquiring into the client's intent or purpose for seeking advice of counsel. (There is no citation of law given for this, and I am aware of no authority cases so holding, so this appears to be the first case on this point.) And because of the number of questions concerning privileged communications, the error was prejudicial.