Costco Wholesale Corp. v. Superior Court puts the privilege in attorney-client privilege

This morning the California Supreme Court issued its opinion in Costco Wholesale Corp. v. Superior Court.  If you don't remember this case, the Trial Court granted a Motion to Compel the production of documents that included a partially redacted letter from outside counsel to Costco, commenting upon the appropriateness of classifying certain managerial employees as exempt from California’s overtime pay laws and regulations.  Then a Petition for a Writ was filed, an OSC issued, the OSC was dismissed without an opinion, the Supreme Court directed the Court of Appeal to issue an OSC, the matter was heard, and, finally, the Petition was denied.  The Supreme Court subsequently granted a Petition for Review.

Without getting into the nuts and bolts of the ruling at this time, the Supreme Court's determination was clearly stated in the opening paragraph:

In this case we consider whether the trial court erred by directing a referee to conduct an in camera review of an opinion letter sent by outside counsel to a corporate client, allowing the referee to redact the letter to conceal that portion the referee believed to be privileged, and ordering the client to disclose the remainder to the opposing party. We conclude the court‟s directions and order violated the attorney-client privilege, and violated as well the statutory prohibition against requiring disclosure of information claimed to be subject to the attorney-client privilege in order to rule on a claim of privilege. (Evid. Code, § 915, subd. (a).)

Slip op., at 1.  The opinion is unanimous, but Chief Justice George offers interesting remarks about the nature of what constitutes an attorney-client communication in a concurring opinion.